LEGAL ASPECTS OF GLOBALIZATION

LECTURE 1 - THE WORD NOMOS

The traditional Eurocentric (16th-17th c.) order of international law is foundering today as it is the
old nomos of the Earth. This order arose from a legendary and unforeseen discovery of a new world
(America), from an unrepeatable historical event. Only in fantastic parallels can one imagine a
modern recurrence, such as men on their way to the moon, discovering a new and unknown planet
that could be exploited freely and utilized effectively to relieve their struggles on Earth. The question
of a new nomos of the Earth will not be answered with such fantasies any more that it will be with
further scientific discoveries. Human thinking again must be directed to the elemental orders of its
terrestrial “being here and now”.
We will seek to understand the normative order of the Earth. Globalization and new larger political
entities require a new political realism and a new political theory dealing with a new type of law
regulating international relations. This global order will fail if it does not take into account the
accomplishments of the only truly global order of the Earth developed so far: the ius publicum
europaeum.

THE MEANING OF WORD “NOMOS” (means also law/norms)

To understand the link between the global international order and the global law, we have to start
our analysis from a Greek word: the word “nomos”. The Greek word for the first measure of all
subsequent measures, for the first land-appropriation, understood as the first partition and
classification of space, for the primeval division and distribution is nomos. Although in antiquity
nomos had already lost its original meaning and had sunk to the level of a general term lacking any
substance, it has a designation for any normative regulation or directive passed or decreed in
whatever fashion.

NOMOS AND LAW

The fact that nomos and land-appropriation are related has not been evident since the Sophists.
Already in Plato, nomos signified a schedòn, that is a mere rule. Aristotle distinguished between the
concrete order as a whole, that is the politeia, and the many individual rules, that are the nomoi.
Xenophon already had defined any written directive of the authorized ruler as nomos; whereby he
equated plebiscites with nomos. Solon, for example, is for Aristotle the ruler that creates the nomos
in a specifically untenable way, as did Lycurgus, he simultaneously created the nomoi and a politeia
through land-division and liquidation of debts. Whereas with Draco, nomoi existed only within a
given politeia.
The famous proverb about nomos as ruler and idea that nomos as such should govern mean
something completely different to Aristle from what is commonly sought today. Aristotle said that
nomos rather than democratic plebiscites should be decisive. First, then nomos signified an
antithesis to psephismata; but second, the rule of nomos for Aristotle is synonymous with the rule of
medium-sized, well-distributed landed property. In this sense, the rule of nomos means the rule of
the middle classes. Thus, the original meaning of nomos, its origin in land-appropriation, still is
recognizable. The original meaning was destroyed by a series of distinctions and antithesis; most
important among them was the opposing of nomos and physis, whereby nomos became an imposed
ought dissociated from and opposed to his.
UTILITY OF WORD “NOMOS”

The word “nomos” is useful for us because it shields perceptions of the current word situation from
the confusion of legal positivism, in particular from the muddle of words and concepts characteristic
of the 19th century jurisprudence dealing with domestic matters of state. Not to lose the decisive
connection between the order and orientation, one should not translate “nomos” as law (in German,
for example, “gesetz”) or regulation, norm or any similar expression. Nomos comes from “nemein”, a
Greek word that means both to divide and to pasture. Thus, nomos is the immediate form in which
the political and social order of a people becomes especially visible. In Kant’s words, it is the
distributive law of mine and thine or, to use an English term that expresses it well, it is the radical
title. Nomos is the measure by which the land, in a particular order, is divided and situated; it is also
the form of political, social and religious order determined by this process. In particular nomos can
be described as a wall, because, like a wall, it too is based on sacred orientations: the nomos can
grow and multiply like land and property. It is surely significant that nomos can refer also to a scale
or succession of notes, that is to a musical order.
For decades the contemporary situation has been characterized by the centralistic state measure of
legality; the only corrective is the concept of legitimacy that today is rather impotent: legality now is
only the functional mode of a state bureaucracy. Today the natural sciences also speak insistently of
laws. In this respect, the concept of law may be even more bewildering in the positivism of the
natural sciences than in the positivism of jurisprudence, precisely because the natural law of the
natural sciences only denotes a calculable function without substance. The positivism of the natural
sciences knows no origin and no archetype, only causes; it is interested, as its founder Auguste
Comte said, solely in the law of appearance, not in the law of inception. For it home and origin are
not core characteristics, which is why he abolishes the link between order and orientation.

NOMOS BASILEUS

A passage from the poet Pindar, handed out to us primarily by Herodotus and Plato and
reconstructed with the help of several fragments, speaks of nomos basileus, that it nomos as king.
Another passage in Herodotus referring to the Spartans speaks of nomos as the despot. In the
Pindar’s passage, it deals with the theft of cattle, an act of Heracles, the mythical founder of order,
whereby despite the violence of the act, he created law. In Plato it is the sophist Callicles, who cites
the Pindar passage and interprets it in the sense of a mere enactment of an act. In this reading
nomos would be nothing more than the arbitrary right of the stronger. In its original sense, however,
nomos is precisely the full immediacy of a legal power not mediated by laws, it is a constitutive
historical event, an act of legitimacy whereby the legality of a mere law first is made meaningful.

ORIENTATIONAL CHARACTER OF THE WORD

By comparison a research of a famous scholar called Jost Trier has made recognizable once again
the orientational character of the original word nomos. At the beginning it was “fence”: fences,
enclosures and borders are deeply interwoven in the world formed by men determining its concept.
The enclosure gave birth to the shrine by removing it from the ordinary, placing it under its own laws
and entrusting it to the divine sphere. In particular it was not the abolition of war, but rather its
bracketing that has been the great core problem of every legal order. Every nomos consists of what
is within its own bounds.
Nomos means dwelling place, district, pasturage. The word “nemus” has the same root and can have
ritual significance as forest, grove, woods.
The original special character of the word nomos could not hold in Greek Antiquity either. Solon’s
directives, which at first were called “thesmoi”, were later called nomoi. The designation nomoi for
the provinces or districts of the Ptolemaic Empire comes perhaps from the Egyptian word “nomes”.
Since Alexander the Great was worshipped as God and since in the Ellenistic empires deification of
the ruler became an institution, one no longer could distinguish between nomos and thesis.Later,
after the victory of Christ over the Caesar, a new religion took over the historical legacy of classical
antiquity. The modern positivism of enactments was the creation of disillusioned jurists whose
mental attitude after the political disappointments of 1848 was the basis for the claim of the
supremacy of the natural sciences, of the progress of industrial technical development and of the
new claim of the legitimacy of revolution. The law logically became an act oriented to state
authorities with power to apply it and the chance to compel obedience. Law and regulation no
longer could be distinguished.

NOMOS IN HOMER

“Tell me, Muse, of the man of many devices drive far stray
after he had sucked the sacred citadel of Troy. Many were the
men whose cities [asterea] he saw and whose minds [VOOV or Vouov]
he learned, and many the woes he suffered in his heart upon
the sea, seeking to win his own life and the return of his comrades.” (The Odyssey’s incipit)

At this point it is both useful and fruitful to consider precisely a passage of The Odyssey in an
attempt to clarify the word nomos. The standard version insists on the word “noos”, that is mind or
sense, instead of the word nomos. Most convincing is that at the beginning of The Odyssey the poet
speaks in verse 3 of land and in verse 4 of sea, and it is nomos rather than noos that is associated
with land in a specific way. According to the standard version, noos rather than nomos signifies the
point at which Odisseus presumably comprehended the noos, that is the spirit, intellect, mentality
and character of many people or even of the cities of many people. The joining of cities and citadels
with a noos, in the sense of spirit, intellect and mentality, seems to be completely absurd because
noos is common to all people. To attempt to comprehend the noos, which is something generally
human, by differentiating among individual cities or even fortified cities would have been completely
foreign to the thinking of antiquity. Neither can one speak of the noos of many people since noos is
universally human, common not just to many but to all thinking people. Whereas something walled
and enclosed or a sacred place, all of which are contained in the word nomos, expresses precisely
the divisional and distinguishing orders whose particularity necessarily would be of interest to a
perceptive and very wily seafarer.

NOMOS AS SPATIAL ORDER

On this point, matters are complicated further by the fact that most philological interpreters
obviously have no sense of how totally the word law was functionalized by late 19 th century jurists
into the positivistic legal system of the modern state apparatus. In reality the words used by
Heraclitus and Pindar mean only that all subsequent regulations of a written or unwritten kind derive
their power from the inner measure of an original constitutive act of spatial ordering. This original
act is the nomos. All subsequent developments are either results of an expansion on this act or
redistribution either a continuation on the same basis or a disintegration of and departure from the
constitutive act of the spatial order established by land-appropriation. This is the sense in which the
nomos of the Earth is spoken of here. Every new age and every new epoch in the coexistence of
peoples and empires and counties, of rulers and power transformation of every sort is founded on
new spatial divisions, new enclosures and new spatial orders of the Earth.

LECTURE 2 - LAND-APPROPRIATION AS A CONSTITUTIVE PROCESS

The period of time that preceded our Age was based on the results of the so-called
“Völkerwanderung”, a German term which was used to indicate not so much a migration of peoples
as a series of great land-appropriations. Even then, however, a land-appropriation of the Earth’s soil
remains fundamentally significant. There is another important German term, the term “landnahme”
(in English “land-appropriation”), used here to describe a process of order and orientation that is
based on firm land and establishes law, has been in common usage only in the last few decades.
With any land-appropriation there is in some way also a division and distribution of the seized land,
but the division is only a consequence of land-appropriation: it is the effluence and effect of the
radical title established externally and internally by the land-appropriation. The term “landteilung”
(“land-division”) no doubt is still influenced by Luther’s Bible translation, which refers to the seizure
and division of land, division by lot among the individual tribes. For our purposes, the term “land-
appropriation” is better than “land-division” because land-appropriation, both externally and
internally, points clearly to the constitution of a radical title.

LAND-APPROPRIATION, LAW AND ORDER

At this origin of land-appropriation, law and order are one, order and orientation coincide, they
cannot be separated. A land-appropriation occurs with every territorial change, but not every land-
appropriation, not every alteration of borders, not every founding of a new colony creates
revolutionary changes in terms of international law, i.e. it is a process that constitutes a new nomos.
In particular it depends upon whether there is free land to be had, and whether there are accepted
forms for the acquisition of non-free land; for example we can think about Vitoria’s doctrine of just
war that made possible the appropriation of foreign non-free land as we will see. Yet, jurists of
positive law, i.e. of constituted and enacted law, have been accustomed in all times to consider only
the given order and the processes that obtain within it. They are content to reject as “unjuridical”
the question of what processes established this order. However, they have an immediate answer for
the further question regarding the origin of this constitution or the origin of the state: they say it is a
mere fact. Nevertheless, the theory of constitutive processes and power manifestations that
produces constitutions also involves questions of jurisprudence. There are several types of law:
there is not only state legality, but also law that precedes the state, law that is external to the state
and law among the states.
With this consideration of the significance of land-appropriation in international law, we have
obtained the possibility of comprehending in terms of legal history and legal philosophy the basic
event in the history of European international law: the land-appropriation of a new world.

LAW AND SPACE IN GENERAL

THE “MOTHER” OF LAW

In mythical language the Earth became known as the “mother of the Law”. This signifies a three-fold
root of law and justice:
1. every farmer knows the inner measure of this justice
2. soil that is cleared and worked by human hands manifests firm lines whereby definite
division become apparent
3. the solid ground of the Earth is delineated by fences, enclosures, boundaries, walls, houses
and other constructs

Then, the orders and orientations of human social life become apparent. Law is bound to the Earth
and related to the Earth.
The sea knows no such apparent unity of space and law, of order and orientation. The sea is free.
Originally, before the birth of great sea powers, the axiom “freedom of the sea'' meant something
very simple, that the sea was a zone free for booty. The word “pirate” comes from the Greek
“peiran”, meaning to test, to try, to risk. Only when the great sea empires, or to use a Greek
expression the thalassocracies, arose were security and order established on the sea. The pirate was
declared to be an enemy of the human race, or in Latin an hostis generis umani.

LAND-APPROPRIATION IN PRACTICE

The great primeval acts of law remained territorial orientations: appropriating land, founding cities
and establishing colonies. Appropriating land and founding cities are always associated with an initial
measurement and distribution of usable soil which produces a primary criterion embodying all
subsequent criteria. A land-appropriation grounds law in two different directions: internally and
externally.
To the extent, every land-appropriation internally creates a kind of supreme ownership of the
community as a whole, even if the subsequent distribution of property does not remain purely
communal and recognizes completely free private ownership of the individual.
Externally, the land-appropriating group is confronted with other land-appropriating or owning
groups and powers. In thi case, land-appropriation represents a legal title in international law in two
different ways:
1. either a parcel of land is extracted from a space that until then had been considered to be
free, i.e. having no owner or master recognized by the foreign law of the land-appropriating
group;
2. or a parcel of land is extracted from a formally recognized owner and master, and thereby
becomes the property of the new owner and master.

First, we must not think of land-appropriation as a purely intellectual construct, but we must
consider it to be a legal fact, to be a great historical event, even if, historically, land-appropriation
proceeded rather tumultuously. Second, we must remember that, both internally and externally, this
fundamental process of land-appropriation preceded the distinction between public and private law,
public authority and private property (imperium and dominium).

LAND-APPROPRIATION IN THEORY

Our discourse is supported also by the ideas of three great thinkers. For example, according to
Giambattista Vico the first law was received by men from heroes in the form of the first agrarian
laws. According to John Locke the essence of political power, first and foremost, is jurisdiction over
the land: dominium is first of all rule only over the land and, only as a consequence of this, rule over
the people who live on it.
As it is evident in the doctrine of the supreme proprietorship of land, Kant’s legal theory also begins
with the premise that all property and every legal order has land as its precondition and is derived
from the original acquisition of the Earth’s soil.
So, not only logically but also historically, land-appropriation precedes the order that follows from it;
it constitutes the original spatial order, the source of all further concrete order and all further law.

HISTORY OF LAND-APPROPRIATION

The traditional history of international law is also a history of land-appropriations. At certain times,
sea-appropriations also became part of this history and then, the nomos of the Earth rests on a
particular relation between firm land and free sea. Today, as a result of a new spatial phenomenon,
the possibility of a domination of air space, firm land and free sea are alike being altered drastically,
both in and of themselves and in relation to each other. All pre-global orders were essentially
terrestrial, even if they encompassed sea powers and thalassocracies. The originally terrestrial world
was altered in the Age of Discoveries. In the 16th century it was England that dared to take the step
from a terrestrial to a maritime existence. Until now only one author, Hegel, has come close to this
arcanum, this secret; his words will serve to conclude this corollary: “The principle of family life is
dependent on the soil, on firm land, on terra firma. Similarly, the natural element for industry,
animating its outward movement, is the sea”.

LECTURE 3 - PRE-GLOBAL LAW

ANCIENT INTERCONNECTIONS

When we analyze the ancient interconnection, we can disregard the philosophical generalization of
the Hellenistic period with Alexander the Great, which made a cosmopolis, a sort of word-state, out
of a polis, a sort of city-state because they lacked a topos, an orientation, and thus had no concrete
order. Their interconnections lacked a global character. Each considered itself to be the world, at
least the world inhabited by human beings, or to be the center of the world, the cosmos, the house,
and each regarded the part of the Earth outside this world, as long as it did not appear to be
threatening, to be either uninteresting or an odd curiosity.
Roman map characteristics: circular, circle around Rome, Italy more centralized, geographical
dimensions are distorted without a geographical cartographical and geometrical representation of
tridimensional world on a bidimensional map of the world= conceptual representation of the world.
Not political or geographical map, it’s a chaos from our perspective, but for them this was a cosmos,
an order.
The really historically correct realization has gained acceptance, i.e. that precisely Roman Law, in its
practice of international law, recognized a variety of wars, leagues, federations (foedus aequum =
equitable federation; foedus iniquum = inequitable federation) and foreign territories. Above all,
Roman Law was able to distinguish the enemy (the so-called “hostis”) from the thief and the
criminal. The ability to recognize a just enemy (justus hostis) is the beginning of all international law.
Thus, there was an international law corresponding to the pre-global image of the world (mythical
sphere) ; but its concepts of the world and of its peoples remained in the mythical sphere. These
concepts could not withstand the geographical enlightenment and scientific measurement that
prevailed in the global image of the world after the 16th century. The purpose of such boundaries
was to separate a pacified order from a quarrelsome disorder, a cosmos from a chaos, a house from
a non-house, an enclosure from the wilderness.

ANCIENT RELATIONS ORDER

In all ages, there have been relations between empires. Until recently, it was commonly thought in
Europe that fully developed diplomatic exchange and the art of well-conceived foreign policy
balancing several powers first arose in Italy during the 15th and 16th centuries AD, as a highly
modern product of the Renaissance. The political and economical relations of Ancient Greek,
Hellenistic, Jewish, Indian, Arabic, Mongolian, Byzantine and other power formations are often the
subject of interesting studies; but, above all and most decisive, everything remained within the
framework and the horizon of a spatial concept of the Earth that was neither global nor all-
encompassing, of an Earth that had not been measured scientifically. The nomos of their spatial
order was not determined either by the antithesis of land and sea as two different orders. As for the
feudal law of the European Middle-Ages, in particular, it was land law in the sense of an exclusively
terrestrial order not acquainted with the sea. In terms of locality, the high cultural zones of the
eastern and western hemispheres were basically continental, at most thalassic; in the ancient world,
with the exception of the far North and the perennial damp tropics, they were distributed all over
climatic zones of North-African European continental landmass. The common law that arose from
such a free global division of the Earth could not be a comprehensive and coherent system, because
it could not be an encompassing spatial order.
As soon as empires appeared on the scene, three types of relations arose:
1. relations among empires
2. relations between peoples within an empire
3. relations between an empire and mere tribes and peoples

It remained necessarily rudimentary because international law regulating relations between empires
could not be converted easily into a firm bracketing of war, i.e. into recognition of the other empire
as a just enemy. Consequently, wars between such empires were waged as wars of annihilation until
another standard developed. Law among peoples within an empire, however, was determined by
the fact that they belonged to the world (orbis) of the same empire. The territory of independent,
autonomous confederates (foederati) also belonged to this orbis.

RES PUBLICA CHRISTIANA AND THE LAW

HOSPITALITAS

The so-called “modern international law”, that is interstate European international law from the
16th to the 20th century, arose from the disintegration of the medieval spatial order supported by
empire by papacy. In any case, medieval conditions and institutions appear today in an odd mixture:
here as a specter of feudal anarchy, there as a precursor of modern order. It is imperative to
distinguish clearly between the anarchy of the Middle-Ages and the nihilism of the 20th century.
The medieval order arose from the land-appropriations of the migration of peoples (
Völkerwanderung). Many of these land-appropriations proceeded as conquests, simply by seizing
landed property from the previous owners, but without respect to the legal situation of the Roman
world. Germanic land-appropriations occurred within the spatial order of the Roman Empire, in that
the wandering tribes had obtained Roman imperial territory from the Roman emperor. They were
not fulfilled as annexations, but rather in the form of a recognized legal institution: the military
quartering, also called in Latin “hospitalitas”. In such cases, land-appropriation took the legal form of
a quartering of soldiers with a Roman landowner. With the land divided between the Germanic
appropriator and the Roman landowner, new nations and new political units arose from different
tribes and peoples living together.

UNITY OF RESPUBLICA CHRISTIANA

The encompassing unity of the international law of medieval Europe was called Christian Republic (in
Latin Respublica Christiana) and the Christian people was called, in Latin, populus christianus. There
were a few characteristics of this spatial order:
➢ the soil of non-Christian, heathen people was Christian missionary territory
➢ the continuity between the Roman Empire and the Byzantine Empire
➢ the soil of Islamic empires was considered to be enemy territory that could be conquered
and annexed in crusades
➢ the soil of European Christian princes and peoples was distributed according to the law-land
of the time

Within the Christian sphere, wars among Christian princes were bracketed wars: they were
distinguished from wars against non-Christian princes and peoples. These internal, bracketed wars
did not negate the unity of the Christian Republic; this means that they did not abolish or negate this
total spatial order. Therefore, they not only allowed, but necessitated a moral-theological and
juridical evaluation of the question of whether they were just or unjust wars.

THE ROLE OF KATECHON

The unity of this Christian Republic had its adequate succession of order in the empire and in the
priesthood, i.e. in the imperium and in sacerdotium. Its visible agents were the emperor and the
pope. The continuity that bound medieval international law to the Ancient Roman Empire, however,
was not found in norms and general ideas, but in the concrete orientation to Rome. This Christian
Empire was not conceived as eternal: it always had its own end and that of the present eon in view.
Nevertheless, it was capable of being an historical fundamental power.
The decisive historical concept of this continuity was that of the restrainer, a Greek concept called
kathecon. “Empire” in this sense, in the sense of an empire conceived as a katechon, meant the
historical power to restrain the appearance of the Antichrist and the end of the present eon. It was a
power that withholds, as the Apostle Paul said in his Second Letter to the Thessalonians.
I do not believe that any historical concept other than katechon would have been possible for the
original Christian faith: the conviction that only the Roman Empire and its Christian perpetuation
could explain the endurance of the eon and could preserve it against the overwhelming power of
evil was really fundamental.
In the High Middle-Ages, these concepts had to conform organizationally to a feudal order of land
ownership and to the personal bounds of a feudal system of vassalage; after the 13th century these
concepts sought to maintain a disintegrating unity, vis-à-vis plurality of countries, crowns, royal
houses and independent cities.
The medieval West and Central European unity of the emperor and priesthood was never a
centralized accumulation of power in the hands of one person. From the beginning, it rested on the
distinction between the power, the so-called potestas, and the auctoritas (the authority), and they
were conceived as two distinct lines of order of the same encompassing unity. Thus, the antithesis of
emperor and pope were not absolute, but rather were diverse orders in which the encompassing
order of the Respublica Christiana resided.
The shifting political and historical situations in the Middle-Ages caused the emperor to claim
auctoritas and the pope to claim potestas. Misfortune did not arrive until the 13th century, when
the Aristotelian doctrine of the perfect society (doctrine of societas perfectae) was employed to
divide the Church and the world into two types of different perfect societies. Given that not only the
German king, but also other Christian kings as well, assumed the title of the emperor and called their
realms “empires”, given that they received their mandates for missions and crusades (their legal
titles to land) from the Pope, they did not destroy, but rather confirmed the orientations and orders
grounding the unity of the Christian Republic. A commision that stemmed from a completely
different sphere, than did the dignity of the monarch; the imperium attached itself to indigeneuos
formation.
The great theological and political thinkers of the empire certainly had no difficulty in adjusting their
doctrine of empire to the Aristotelian doctrine of the perfect societies that had gained ground since
the 13th century as we have said. The perfect and autarkic communities (communitates),
commonwealths (civitates), societies (societes) were able to fulfill their meaning and purpose, their
goal and inner principle: to live the beautiful and autarkic life, to live sufficiently well (bene
suificienterque vivere).

CRISIS OF CHRISTIAN LEGAL ORDER

However, all such renovations, reproductions and revivals in the prosecution of time disregarded the
concept of katechon. Consequently, instead of leading to a comprehensive Christian empire, they led
to a political situation called “Caesarism”, that we will analyze. It began with the French Revolution
of 1789, and belongs historically to the time of the great parallel between the situation of early
Christianity and that of the 19th century.
Now we have to concentrate our analysis on the medieval situation. After the beginning of the 13th
century, this knowledge of the meaning of Christian history gradually disappeared. The great
philosophical systems also destroyed the concrete sense of history and dissolved the historical
manifestation of the struggle against heathens and non-believers into neutral generalizations. Once
the German kings had created, from a political point of view, a dynasty, empire became a
component of it. Thereby, the concept ceased to be the elevation of a crown grounded in the work
of a katechon, i.e. a monarchy grounded in a country and its people. However, in this way, the crown
of the German kings was robbed of its substance, i.e. of the fixed orientation in terms of space and
land that had characterized other medieval crowns to such a high degree, especially the crown of
Saint Stephen. The strong katechon concept of Frankish, Saxonian and Salic times had become a
weaker, but still more conservative upholder and preserver.
In the constructions of the 14th and 15th century jurists of Roman civil law, we can see that the link
between Christian Empire and territorial monarchies, that had served to uphold the work of that
katechon, had been completely forgotten. The dissolution of the medieval order was already evident
in the dissolution of such spatial concepts.
In the 14th century the emperor still remained the guardian of the law and of the freedom of any
independent monarchy; he retained the task of rendering harmless the enemies of the law, of the
freedom of the local communities especially if there was a tyrant. The tyrant remained an enemy of
humanity, of a humanity that had found its order and orientation in the empire and in the pope. For
the order of the land, the tyrant was the common enemy, just as, for the order of the sea, the pirate
was the enemy of the human race. However, as already noted, at the beginning of the 13th century,
political units were formed at a local level; they not only factually, but increasingly also legally
withdrew from the power of the empire and sought to restrict the authority of the pope to purely
spiritual matters. So that medieval Christian order that we have analyzed began to dissolve.
Numerous kings, lords and cities withdrew from the imperium of the German king: no doubt that
endangered the structure of the whole order. But this whole order was still able to exist and to
maintain such decisive spatial division in international law as the distinction between European
Christian and non-Christian soil, and between different types of enemies and wars, in particular wars
among Christians and all the other wars. Even when the imperial power had become a powerless
name, the comprehensive order of medieval European international law remained, as long as the
authority of the pope sufficed to issue mandates or missions and crusades, and to award new
missionary territory.
Only a completely different spatial order ende medieval international law in Europe. It arose with
the centralized, spatially self-contained, continental European state that faced emperor and pope as
well as other, similarly organized neighbouring states. The new legal titles characteristic of this new,
state-centered international law, which were completely foreign to the Christian Middle-Ages, were
the discovery and the occupation of new lands.
Theory of two bodies of the king. Corporal (himself) + the state and, consequently, the people

LECTURE 4 - LAND-APPROPRIATION OF A NEW WORLD

Peace of Westfalia 1648- new actors the states, no more the emperor and the pope. The new global
image, resulting from the circumnavigation of the Earth and the great geographical discoveries of
the 15th and 16th centuries, required the elaboration of a new spatial order. Thus, the epoch of
modern international law, that lasted until the 20th century, began.
The division and distribution of the Earth increasingly became a concern of peoples and powers
existing in close proximity. Lines were drawn to divide and distribute the whole Earth.
From the 16th to the 20th century, European international law considered Christian nations to be
the creators and representatives of an order applicable to the whole Earth.
In the Middle-Ages, Christian princes and peoples of Europe considered Rome or Jerusalem to be the
center of the Earth, and regarded themselves as part of the Old World.
In 1492, when a new world emerged, the structure of all traditional concepts of the center and the
periphery of the Earth had to change. A free space, as an area open to European occupation and
expansion, was invented.

GLOBAL LINEAR THINKING

The first attempts in international law to divide the Earth as a whole, according to the new global
concept of geography, began immediately after 1492. I call “global linear thinking”, which represents
a chapter in the historical development of spatial consciousness.
The word global captures the encompassing and planetary, as well as the external and superficial
character of this type of thinking, based on the equation of land and sea surfaces. The question was
political from the start; it could not be dismissed as “purely geographical”. As scientific,
mathematical, or technical disciplines, geography and cartography certainly are neutral. Despite the
neutrality of geography as a science, purely geographical concepts can generate a political struggle,
which sometimes justifies Thomas Hobbes’s pessimistic maxim that even arithmetic and geometric
certainties become problematic if they fall within the sphere of the political. Here, the intense
friend-enemy distinction starts.
The first global lines of division and distribution were drawn in this period. Shortly after the
discovery of America, the famous line in Pope Alexander VI's edict “Inter caetera divinae” (May 4,
1494) was drawn. It ran from the North Pole to the South Pole, 100 miles West of the meridian of
the Azores and Cape Verde. Pope Alexander VI's global line was consistent with the one drawn
somewhat to the West of it, approximately through the middle of the Atlantic Ocean (370 miles
West of Cape Verde), by the Spanish-Portuguese Treaty of Tordesillas (June 7, 1494), in which the
two Catholic powers agreed that all newly discovered territories West of the line would belong to
Spain and those East of the line to Portugal. This Molucca Line gradually became the border on the
other half of the globe.
Global linear thinking has its own development and history. Its numerous forms constitute a
coherent progression from the discovery of America in 1492 to the American declaration of World
War II.
First, I will define the various categories and then differentiate between the specific types and
historical characteristics of global lines.

RAYAS

The first distinction becomes apparent with the great historical transformation leading from the
Spanish-Portuguese divisional lines, the so-called “rayas”, to the French-English friendship lines, the
so-called “amity lines”.
For a raya to obtain, two princes, both recognizing the same spiritual authority and the same
international law, had to agree on the acquisition of land belonging to princes and peoples of
another faith. Even if it was a contractual agreement that led to the establishment of the line, in the
background these princes still shared the authority of a common order and a common arbitrational
authority: the pope.
In practice, areas free for missions were not separated from those of navigation and trade. The
Spanish are waging a just war, and therefore may annex Indian lands if the Indians resist free
“commercium” (not only "trade") and the free mission of Christianity.
Accordingly, rayas were based on a consensus in international law concerning land-appropriation,
whereby there was no distinction between land and sea-appropriations. Thus, they recognized each
other as equal parties to a treaty of division and distribution concerning land-appropriation.

AMITY LINES

Amity lines first appeared (and were agreed upon only verbally) in a secret clause in the Treaty of
Cateau-Cambresis (1559). Essentially, they belong to the age of religious civil wars between land-
appropriating Catholic powers and Protestant sea-powers.
Treaties, peace, and friendship applied only to Europe, to the Old World, to the area on this side of
the line. Even the Spaniards occasionally asserted that otherwise valid treaties did not hold in "India"
because this was a "new world”.
Geographically, these amity lines ran along the equator or the Tropic of Cancer in the South, along a
degree of longitude drawn in the Atlantic Ocean through the Canary Islands or the Azores in the
West, or a combination of both points.
At this “line” Europe ended and the "New World" began. At any rate, European law, i.e., “European
public law”, ended here. Consequently, so, too, did the bracketing of war achieved by traditional
European international law meaning that here the struggle for land-appropriations knew no bounds.
Only the law of the stronger applied.
The characteristic feature of amity lines consisted in that, different from rayas, they defined a sphere
of conflict between contractual parties seeking to appropriate land, precisely because they lacked
any common presupposition and authority.
This freedom meant that the line set aside an area where force could be used freely and ruthlessly.
This was a tremendous exoneration of the internal European problematic. The significance in
international law of the famous and notorious expression “beyond the line” lies precisely in this
exoneration.
Second, the free sea (the newly discovered oceans) was conceived by the French, Dutch, and English
to be a realm of freedom. The freedom of the sea was a problem of spatial ordering of the most
importance in international law. Completely terrestrial in their thinking, Roman jurists confounded
the issue from the beginning with such civil concepts as res communis omnium (things common to all
and matters of common use).
Such a division of free spaces recognized by Christian governments had universal repercussions.
We must underline a fact almost inconceivable: in certain areas, Christian princes and peoples had
agreed to disregard the distinction between justice and injustice which had created an abyss
between freedom (the lawlessness of the state of nature) and an orderly “civil” mode of existence.
Thomas Hobbes’s doctrine of the state of nature contained in his construction of the state. For
Hobbes, the state of nature is a domain of werewolves, in which man is nothing but a wolf among
other men, just as “beyond the line” man confronts other men as a wild animal.
Hobbes’s theory of homo homini lupus, stemming from a newly discovered area of freedom, was
the 17th century's response to Vitoria's repudiation of this heathen formula.
In this respect, Hobbes obviously was influenced not only by the creedal civil wars in Europe, but
also by the New World. He speaks of the “state of nature”, but not at all in the sense of a spaceless
utopia. His state of nature is a no man 's land, but this does not mean it exists nowhere. It can be
located, and Hobbes locates it, among other places, in the New World.
Historically speaking, Hobbes can be understood only in terms of his time. Characteristic of his time
were lines and the new, seemingly unlimited spaces of what was then a very concrete freedom.
This is valid also for John Locke, the great opponent of Hobbes from a theoretical point of view. Also
in Locke, concepts of the “state of nature” are linked in terms of contemporary history to the “New
World”. This state of nature, however, has already become a tolerable state of society; it is no longer
the old one “beyond the line”. However, given the historical evaluations of Locke 's doctrine of the
state of nature and his model of society, also keep in mind the remarkable statement (made by an
alleged rationalist at the beginning of the 18th century) that best elucidates the historical and spatial
context of his thought: “In the beginning, all the world was America”.
Hegel's construction of the state is reminiscent of Hobbes. Consequently, for Hegel, America is a
society without a state.
The significance of amity lines in 16th and 17th century international law was that great areas of
freedom were designated as conflict zones in the struggle over the distribution of a new world. As a
practical justification, one could argue that the designation of a conflict zone at once freed the area
on this side of the line, a sphere of peace and order ruled by European public law, from the
immediate threat of those events “beyond the line”, which would not have been the case had there
been no such zone.
This type of thinking had remained typically English; it had become increasingly foreign to the state-
centered legal thinking of continental European nations. For this reason, English law has preserved a
better sense for the particularities of different territorial statutes than has continental legal thinking,
which, even in the 19th century, obtained only in a single territorial status: the state. The diversity of
colonial possessions and the distinction between dominions and non-dominions kept alive the
English sense for specific spatial orders and variations of territorial status.
English law also clearly distinguished between English soil, those areas ruled by common law, and
other spatial areas; common law was regarded as the law of the land (lex terrae). The king's power
was considered to be absolute on the sea and in the colonies, while in his own country it was subject
to common law and to the baronial or parliamentary limits of English law.
In another sense, there is also a historical and structural relation between such spatial concepts of
free sea, free trade, and free world economy, and the idea of a free space in which to pursue free
competition and free exploitation. The “free” spaces created thereby may appear in the favorable
light of zones designated for agonal tests of strength; however, they also may become a desolate
chaos of mutual destruction.

THE WESTERN HEMISPHERE

The third and last global line was the Western Hemisphere. In terms of international law, this line
was the first counterattack of the New World against the Old, but its origins traced back, both
historically and dialectically, to the lines that preceded it.
The Portuguese raya had a distributive purpose; even in the Treaty of Tordesillas, it was called a
“linea de Ia particion del mar”. The English amity line had an agonal character, the designation of a
zone of ruthless conflict.
Effective occupation (the status quo of possession, consolidated by states) ultimately became the
only title of acquisition in the 19th century. Until then, discovery and the much discussed Roman civil
concept of occupatio were the only legal title to the land-appropriation of free soil.
Only after the new spatial order based on states had been achieved in Europe, did the third and last
global line of the Western Hemisphere appear. With it, the New World autonomously opposed the
traditional spatial order of Europe and of Eurocentric international law. In doing so, it radically
challenged the basis of this old spatial order. In terms of intellectual history, this began in the 18th
century, with the War of Independence and the application of Rousseau's state of nature to those
states freeing themselves from England and Europe. Yet, the practical effects of this global line of the
Western Hemisphere did not begin until the 19th century. Then, they developed fully and irresistibly
in the 20th century.

LECTURE 5 - LAND-APPROPRIATION OF A WORLD: DE VITORIA

The basic problem, i.e. justification of European land-appropriations as a whole, was addressed in
any systematic way outside moral and legal questions. In fact, only one monograph addressed this
problem systematically and confronted it squarely in terms of international law.
Originating in the first stage of the conquest, it directly posed the question of the future legal title to
the great land-appropriation and answered it in a manner consistent with the scholastic method. It is
the famous “Relectiones” of Francisco de Vitoria. Vitoria's thesis was obtained within a scholastic-
theological debate and appertained to late Spanish scholasticism.
We will discuss Vitoria's place in legal history and the scholarly uses of his much cited lectures,
whose interpretation has its own history.

VITORIA’S SCHOLASTIC OBJECTIVITY

A contemporary reader's first impression of Vitoria's “Relectiones” is of extraordinary impartiality,

objectivity, and neutrality. Consequently, the argumentation no longer appears medieval, but
modern. There are seven tituli non idonei nee legitimi (titles neither suitable nor legitimate) and the
same number of tituli idonei ac legitimi (titles suitable and legitimate) and they are discussed in
varying detail and with equal objectivity.
Accordingly, all legal titles of the pope and the emperor deriving from claims to world domination
are rejected unconditionally as inappropriate and illegitimate. In particular, it is emphasized
repeatedly that native Americans, though they may be barbarians, are not animals, and are no less
human than are the European land-appropriators.
Another author, Sepulveda, presented the natives as savages and barbarians (with reference to
Aristotle), in order to place them outside the law and to make their land free for appropriation. This
Aristotelian argument was inhuman in its outcome, but it derived from a particular concept of
humanity: the higher humanity of the conqueror. It has an interesting history. The classic
formulation is found first in the writings of the English philosopher Francis Bacon, whose tenets were
adopted by Barbeyrac in his commentary on Pufendorf’s concept of natural law.
The division between human and inhuman had a political meaning and, with some justification,
could be traced back to Aristotle's politics. In this extreme form, it was no longer Christian. But, in
the 18th century, it was consistent with the victory of a philosophy of absolute humanity. Only when
man appeared to be the embodiment of absolute humanity, did the other side of this concept
appear in the form of a new enemy: the inhuman.
The expulsion of the inhuman from the human was followed in the 19th century by an even deeper
division, between the superhuman and the subhuman. Just as the human presupposes the inhuman,
so, with dialectical necessity, the superhuman entered history with its hostile twin: the subhuman.
However, in the general legal arguments of the 16th and 17th centuries, the inhuman-humanitarian
distinction did not stand out as primary, although the higher European civilization did become a
standard justification for colonization. Practically speaking, discrimination based on biological
arguments was unknown in that period.
For Christian theologians, the natives were human beings and bearers of an immortal soul.
The Hobbesian formula “homo homini lupus” and the Aristotelian axiom that some people are
“slaves by nature” were dismissed by Vitoria as “heathen”.
However, Vitoria also recognized that barbarians needed guidance. For him, war against non-
Christians was different from war between Christians.
Rejecting the contrary opinions of other theologians, Vitoria obviously treated Christians and non-
Christians as equals in legal terms.
As with the princes and peoples of Christian lands, barbarian princes in non-Christian lands also had
authority (jurisdictio), and the native inhabitants also had ownership (dominium) of their soil.
According to Vitoria, the right to appropriate land arose only indirectly, and then only by way of
arguments favoring just war.

DISCOVERY AS LEGAL TITLE FOR VITORIA

His treatment of whether discovery constitutes a legal title for acquisition of discovered land is very
interesting.
Discovery was the recognized basis for a true legal title from the 16th to the 18th century. For
Vitoria, it was not a legitimate title of acquisition, even for the discovery of a new world. Apparently,
neither did it constitute for him any special entitlement to acquisition nor any foundation for a legal
title. From a moral standpoint, the New World for him was not new, and the moral problems it
entailed could be handled with the immutable concepts and standards of his scholastic system of
thought. Concretely speaking, this was the basis of the moral and juridical conclusion that all the
Spaniards' rights vis-à-vis the barbarians also were valid in reverse, they were reversible as jura
contraria (contrary laws), as rights of barbarians vis-à-vis Spaniards, i.e., they were unconditionally
reciprocal and invertible.
In another passage, Vitoria contends that barbarians have no more right to exclude Spaniards from
trade and legal commerce than Spaniards have to exclude Frenchmen. This gives the impression that
he no longer saw Europe as the center of the earth and the source of all standards, that he no longer
recognized the spatial order of the medieval Respublica Christiana, with its distinction between the
territory of Christian peoples and that of heathens or non-believers.
This demonstrates the deep antithesis between the scholastic ahistorical approach and a historical
mode of thinking, in particular the 19th century humanitarian philosophy of history.
Not even the emergence of a new continent and a new world led him to adopt historical arguments
based either on a Christian view of history or on the ideas of a humanitarian-civilizing philosophy of
history. The lack of any historical concept at such a crucial time had to lead to a suspension and
displacement of the predominant Eurocentric view of the world and of history in the Respublica
Christiana of the Middle-Ages.

VITORIA AS A THEOLOGIAL
Yet, it would be a gross misinterpretation to say that Vitoria had claimed that the great Spanish
conquista was unjust. If today a superficial reader learns that certain legal titles offered to support
the conquest are rejected as inappropriate, he surmises that this constitutes a general rejection of
the conquest as such. In reality, despite his rejection of seven legal titles (including the right of the
emperor or of the pope to the earth), and despite his claim that the Indians are morally inferior,
ultimately Vitoria's view of the conquista is altogether positive. Most significant for him was the faith
in the accomplishment of Christianization of those peoples.
His intention essentially was to determine the truth of the arguments, rather than to consider the
reality of the historico-political situation. He also does not distinguish clearly the various practical
methods of exercising the rights of missions, as was done in later discussions of this question
outlining three opposing views:
1. first, the apostolic promulgation lacking any force (from the standpoint of Las Casas)
2. second, the prior subjugation of the peoples to be converted (the practice of the
conquistadors)
3. and third, missionary work under military protection, i.e., under simultaneous military escort
(the standpoint of Domingo de Soto)

Undoubtedly, Vitoria' s exposition is completely ahistorical. The positive conclusion is reached only
by means of general concepts and with the aid of hypothetical arguments in support of a just war.
Just war provided the legal title for occupation and annexation of American territory and subjugation
of the indigenous peoples.
How can this astonishing neutrality and objectivity be explained? First of all, there should be clarity
about the existential situation in which it was obtained; it should not be confused with a modern,
free-floating intelligentsia lacking any presuppositions or standpoints. Vitoria was a theologian. He
did not claim to be a jurist, and even less did he wish to provide arguments for disputes between
state governments. Vitoria speaks as a moral counsellor and teacher of future theologians, above all
the moral counsellors of political actors. As a theologian, Vitoria posed the question of the right of
the conquista and of the so-called “justa causa belli” from a thoroughly moral-theological standpoint
with, at least at first glance, an entirely unpolitical objectivity and neutrality.
The arguments in favor of just war, which appear to be so general and neutral, obtain their decisive
legal force precisely from the missionary mandate; their abstract generality in no way diminishes the
existential reality of a concrete historical standpoint.

THE PAPAL MISSIONARY MANDATE

The papal missionary mandate was the legal foundation of the conquest. This was not only the
pope's position, but also that of the Catholic rulers of Spain, who recognized the missionary mandate
to be legally binding.
All these arrangements, mentioned here only as examples, must be judged in terms of the jus
gentium of the Respublica Christiana of the Christian Middle-Ages, not in terms of present-day
international or interstate law, which sharply distinguishes between an internal and an external
international law. Vitoria explicitly rejects discovery and occupation as legal title for land-
appropriation, because, for him, the territory of America was neither free nor unclaimed.
Thus, the papal missionary mandate, even if only indirectly, by means of a just war, was the true
legal title to the conquista. To this extent, however, Vitoria's arguments are consistent with the
spatial order of the international law of the Respublica Christiana. The pope could issue mandates
for either missions or crusades to the lands of non-Christian princes and peoples, which established
both the justice of war in international law and the legitimacy of territorial acquisition.
The Dominican order, to which Vitoria belonged, and the other orders engaged in converting the
Indians, were guardians and executors of the missionary mandate from which the jure gentium of
legitimate title for a secular conquest could be developed.
The concrete historical fact of the land-appropriation of a new world thus occasioned Vitoria's
intellectual construction in his “Relectiones”, with their balancing of pros and cons, arguments and
counter-arguments, distinctions and conclusions, altogether constituting an intellectual unity, an
indivisible totality concerned not with the concrete situation and its practical consequences, but only
with the validity of arguments.

VITORIA’S LEGACY

The practical conclusion is completely consistent with Vitoria's Christian convictions, which found
their true justification in Christian missions.
It never occurred to the Spanish monk that non-believers should have the same rights of propaganda
and intervention for their idolatry and religious fallacies as Spanish Christians had for their Christian
missions. This is the limit of the absolute neutrality of Vitoria’s arguments, as well as of the general
reciprocity and reversibility of his concepts.
Abstracted entirely from spatial viewpoints, Vitoria's ahistorical method generalizes many European
historical concepts specific to the jus gentium of the Middle Ages (such as people, prince, and war),
and thereby strips them of their historical particularity.
Following in the footsteps of Vitoria and Suarez 17th and 18th century philosophers and jurists, from
Grotius to Christian Wolff, consistently developed this moral doctrine of late into a still more
general, more neutral, and purely human ius naturale et gentium (natural and international law).
These philosophers and jurists discarded the distinction, essential for Dominicans, between Christian
believers and non-believers. It thus became possible to use Vitoria's arguments for other and even
antithetical goals and intentions.
An especially widespread and improper use of Vitoria's thinking is the transposition of his moral-
theological doctrines into a context centuries later, where no longer theologians of the Roman
Church, but rather jurists of neutral (with respect to religion) powers developed arguments in
international law. Thus, many of Vitoria's arguments could be divorced from the concrete historical
problem, the justification by papal missionary mandate of the European land-appropriation of a non-
European new world, and could be applied to other situations.
Grotius also distinguished himself from theologians, but he was inclined to use their arguments. Of
particular note is his well-known treatise “Mare liberum” in which he adopted Vitoria's arguments
on liberum commercium (free trade) and the freedom of missions.
Thus, a train of thought that a Spanish theologian had expounded as an altogether internal, Spanish-
Catholic matter within the firm framework of the Dominican order and within the political unity of
the Spanish-Catholic empire, was used only a few decades later against Spain by a polemical jurist of
a hostile country as propaganda in European trade wars.
The distribution of the Earth had reached a different stage, and this Protestant instrumentalization
neutralized the specifically Catholic character of Vitoria's intentions. Having become mercantilist,
European states no longer accepted the arguments of liberum commercium.
Another theologian, Luis de Molina, had conducted that every state had a right to expel unwelcome
visitors, and Samuel Pufendorf had become openly mercantilist. Almost 300 years later, the Spanish
Dominican's arguments were inserted, in an even more astonishing manner, into a system of
thought completely foreign to him.
After World War I, a “renaissance” of Vitoria and late Spanish scholasticism marked an especially
interesting phenomenon in the history of international law.
A major 19th century Belgian jurist, Ernest Nys , frequently referred to Vitoria in his legal-historical
studies of international law in the Middle-Ages and in the 16th century. The thrust of Nys’ work was
a function of his faith in humanitarian civilization and progress. The most recent and modern chapter
in the history of the use of Vitoria's arguments is related directly to Nys' works. James Brown Scott,
the world-renowned American jurist dedicated himself to becoming the official exponent of Vitoria's
fame.

SITUATING VITORIA’S THINKING

His efforts also marked a new stage in the instrumentalization of Vitoria's arguments, which has
reached the point of political myth-making.
Even in official and semi-official United States declarations there is a “return to older and sounder
concepts of war”, by which is meant, above all, Vitoria' s doctrines on free trade, freedom of
propaganda, and just war. War should cease to be simply a legally recognized matter or only a
matter of legal indifference; it again should become just in the sense that the aggressor is declared
to be a felon, meaning a criminal. The former right to neutrality, grounded in the international law of
the jus publicum Europaeum and based on the equivalence of just and unjust war, also should be
eliminated.
We need not elaborate on the general antithesis between medieval Christian and modern civilized
beliefs. In the Middle-Ages, just war could be a just war of aggression. Clearly, the formal structures
of the two concepts of justice are completely different.
It should be remembered that Vitoria's doctrine of just war is argued on the basis of a missionary
mandate issued by a potestas spiritualis (the pope) that was not only institutionally stable, but
intellectually self-evident. The right of liberum commercium and the jus peregrinandi (right to travel)
were to facilitate the work of Christian missions and the execution of the papal missionary mandate.
Despite many internal anomalies, the medieval doctrine of just war at least was grounded in the
framework of a Respublica Christiana. On the one hand, it distinguished various types of feuds and
wars; on the other, it recognized the legal validity of the feudal right of challenge and the baronial
right of resistance. It had to distinguish among feuds, wars between Christian belligerents (those
subject to the Church's authority), and other wars. Crusades, and missionary wars authorized by the
church were eo ipso just wars, without any distinction between aggression or defense.
Formally speaking, the Church's authority was decisive in the determination of just war. Accordingly,
from the standpoint of substantive law, a just war was one waged ex justa causa (from just cause),
i.e., for the purpose of pursuing legal demands, regardless of whether the war was aggressive or
defensive, either strategically or tactically.
Based on relations between states, post-medieval European international law from the 16th to the
20th century sought to repress the justa causa. The formal reference point for determining just war
no longer was the Church's authority in international law, but rather the equal sovereignty of states.
Instead of justa causa, international law among states was based on justus hosti (the just enemy).
Any war between states, between equal sovereigns, was legitimate.
The tum to the modern age in the history of international law was accomplished by a dual division of
two lines of thought that were inseparable in the Middle-Ages.
These were the definitive separation of moral-theological from juridical-political arguments, and the
equally important separation of the question of justa causa, grounded in moral arguments and
natural law, from the typically juridical-formal question of justus hostis, distinguished from the
criminal, i.e. from becoming the object of punitive action.
Vitoria's thinking belongs to the Christian Middle-Ages, rather than to the modern international law
among European states. He approached the non-discriminatory concept of war characteristic of the
new international law among states. But he did not expand this position juridically into a new
doctrine of justus hostis, as did Gentili, for example, but substantiated this non-discrimination with
general references only to the question of bellum justum (just war) in the Christian moral theology of
the Middle Ages.
By contrast, the present theory of just war aims to discriminate against the opponent who wages
unjust war. War becomes an “offense” in the criminal sense, and the aggressor becomes a “felon” in
the most extreme criminal sense: an outlaw, a pirate. Yet, the injustice of aggression and the
aggressor lies not in any substantive or material establishment of guilt in war, in the sense of
determining the cause of war, but rather in the “crime de l'attaque”, in aggression as such.
If today some formulas of the doctrine of just war, rooted in the institutional order of the medieval
Respublica Christiana, are utilized in modern and global formulas, this does not signify a return to,
but rather a fundamental transformation of concepts of enemy, war, concrete order, and justice
presupposed in medieval doctrine. War quickly became a mere punitive action; it acquired a punitive
character. The many serious dubia of the doctrine of bellum justum were forgotten quickly.
The enemy became a criminal, and the rest (the deprivation of rights and the plundering of the
opponent, i.,e., destruction of the concept of the enemy, still formally presupposing a justus hostis)
followed as a matter of course.
This should not be understood in terms of modern concepts of criminal justice, even less in terms of
criminal police actions, but possibly only in the sense of a modern penal code, which by now is
nothing more than social pest control. Thus, the doctrine of just war in the sense of justa causa belli
(just cause of war) had not yet gone so far as to eliminate the concept of war altogether, thereby
transforming a belligerent action into a purely judicial or police action in the modern sense.
Faced with the problem of these European civil wars, the juridical founders of modern interstate
international law (Ayala, Gentili, and Zouch) divorced the question of bellum justum proper from
that of justa causa belli, and made war into a mutual relation between sovereign states in which
justi et aequales hostes (just and equal enemies) confronted each other indiscriminately.
In the modern, discriminatory concept of war, the distinction between the justice and injustice of
war makes the enemy a felon, who no longer is treated as a justus hostis, but as a criminal.
Consequently, war ceases to be a matter of international law, even if the killing, plundering, and
annihilation continue and intensify with new, modern means of destruction.
He has committed an offense in the criminal sense: the crime of aggression. War is abolished, but
only because enemies no longer recognize each other as equals, morally and juridically.
The history of how Vitoria's arguments have been used in international law from the 16th century
until now offers striking examples of unexpected transformations and reinterpretations of concepts.
LECTURE 6 - DISCOVERY AND OCCUPATION

The new European international law began with Alberico Gentili's entreaty that theologians should
remain silent with respect to the question of just war: “Silete theologi in munere alieno!”

THE NEW TERRITORIAL ORDER OF THE STATE

One of the results of the Reformation was that theologians were barred from dealing with
international law. This meant the disappearance of the potestas spiritualis that they had obtained in
the Middle Ages.
Beginning in the 16th century, however, jurists (now in the service of a government) carried
questions of international law further: in part, theoretically, by secularizing scholastic moral-
theological arguments into a "natural" philosophy and a "natural" law of general human reason; in
part, practically and positively, by using concepts of Roman law, as required by contemporary civil
jurisprudence and legal practice.
The concrete spatial order of states then developing in Europe and of the balance being established
among those states was fundamental. Continental European international law since the 16th
century, the so-called “Jus Publicum Europaeum”, originally and essentially was a law among states,
among European sovereigns.
“Statehood” is not a universal concept, valid for all times and all peoples. Both in time and space, the
term described a concrete historical fact.
This political entity (the state) was the vehicle of secularization.
The Roman Catholic Church retreated to a lesser position, as a mere potestas indirect’ (indirect
power), and, as near as I can determine, no longer spoke of an auctoritas directa (direct authority).
The king, i.e. the sacred bearer of a crown, became a sovereign head of state. France was the leading
power and the first state to become sovereign in terms of its juridical consciousness.
Toward the end of the 16th century in France, the creedal civil war was overcome by the concept of
sovereignty, i.e., by the king as the sovereign head of state. French legists, most prominently Jean
Bodin, were the first to formulate clear definitions, which spread like wildfire throughout Europe. In
Bodin’s treaty “Six Books of the Commonwealth”, the word res publica already must be translated as
“state”.
Ayala's and Gentili's treatises appeared a few years later (in 1582 and 1588, respectively), and
outlined the new international law among states. Both were influenced directly by Bodin.
Vitoria also had no doubt that the legal title for the great land-appropriation of the New World could
be conferred neither by the emperor nor by the pope. This is precisely what such Spanish authors as
Domingo de Soto and Ferdinando Vasquez had emphasized in 16th century controversies.
Practically speaking, it meant not only discarding concepts on which the previous spatial order of the
Res publica Christiana had rested but also eliminating the justification of war they had entailed. This
spelled the end of the medieval doctrine of the tyrant, i.e. of the possibility of intervention by the
emperor and pope, as well as the end of the rights of challenge and resistance, and of the old “peace
of God”.
These were supplanted by a peace guaranteed by the state. Above all, this type of state signaled the
end of the Crusades, i.e., of papal mandates as recognized legal titles for land-appropriations of non-
Christian princes and peoples.
 ➔ First, it created clear internal jurisdictions by placing feudal, territorial, estate, and church
rights under the centralized legislation, administration, and judiciary of a territorial ruler.
➔ Second, it ended the European civil war of churches and religious parties, and thereby
neutralized creedal conflicts within the state through a centralized political unity.
➔ Third, on the basis of the internal political unity the state achieved vis-a-vis other political
unities, it constituted within and of itself a closed area with fixed borders, allowing a specific
type of foreign relations with other similarly organized territorial orders.

State became the representative of a new order in international law, whose spatial structure was
determined by and referred to the state. Characteristically and specifically, the state's international
law became inter-state law.
Only as a consequence of the clear demarcation of self-contained territories did jus gentium become
distinctly and clearly jus inter gentes.
The distinction between jus gentium and jus inter gentes was well known to medieval theologians
and jurists. As an abstract antithesis, it was not a scientific discovery. It was not new to Vitoria. But
the transformation of the gentes into centralized, self-contained, and limited territorial states gave
rise to a new spatial structure.

OCCUPATION AND DISCOVERY AS LEGAL TITLE

To resolve the problem of the legal title for land-appropriation, the crucial point is that they no
longer answered it as a question pertaining to Europe as a whole.
They answered it in terms of the struggle among individual European powers vying for land-
appropriations. Only in this way - in terms of their interest in internal European conflicts over land
appropriations of non-European territory - can we explain their use of the Roman legal and civil
concept of occupatio as the essential legal title, and their failure to recognize the true European legal
title: discovery.
To the extent that it presupposed the distinction in international law between European territories
of European princes and peoples and other territories “overseas”, the legal title “occupation”
corresponded to contemporary reality. The New World was open for occupation. With this thesis,
17th and 18th century jurists assumed that the New World was open only to European states. It was
understood that the territory of the occupied colonies would not be identical to the territory of the
occupying state. This kind of occupation differed essentially from what, since the end of the 19th
century, has been called “effective occupation”, i.e. incorporation of a given territory into the
governmental and administrative system of a state recognized as a member of the international
community. This “effective occupation” meant suspension of a specifically colonial territorial status
and its transformation into state territory.
In the 16th, 17th, and 18th centuries, this was out of the question.
The mere fact that immense spaces were conquered and dominated by autonomous trading
companies ruled out such an equalization of European and colonial territory.
More colonial territory was acquired in the form of feudal land grants.
However, in reality, the only justification for the great land-appropriations of non-European territory
by European powers was discovery.
True legal titles obtained only within the framework of a recognized order of international law, for
which such symbols have a legal force. Discovery, then, is not a timeless, universal, and normative
concept; it is bound to a particular historical, even intellectual-historical situation: the “Age of
Discovery”.
Vitoria's arguments demonstrate that this specific historical concept had no meaning for scholastic
philosophy. This was so because the meaning of the legal title “discovery” lay in an appeal to the
historically higher position of the discoverer vis-a-vis the discovered.
Thus, legal title to discoveries lay in a higher legitimacy. They could be made only by peoples
intellectually and historically advanced enough to apprehend the discovered by superior knowledge
and consciousness.
A discoverer is one who knew his prey better than the prey knows himself and is able to subjugate
him by means of superior education and knowledge.
The intellectual advantage was entirely on the European side, so much so that the New World simply
could be “taken”, whereas, in the non-Christian Old World of Asia and Islamic Africa, it was possible
only to establish subjugated regimes and European extraterritoriality.

To sum up:

•Occupatio => essential legal title used => using autonomous trading companies

•Discovery => true legal title => to apprehend the discovered by superior knowledge and consciousness

GROTIUS AND PUFENDORF

Jurists retained numerous formulas of medieval scholasticism and jurisprudence, although these had
originated in a completely different, pre-global spatial order and presupposed either concepts
lacking any spatial sense or a fundamentally different type of nomos. They added ostensibly purely
juridical or civil concepts from late medieval commentaries, as well as the humanistic erudition of an
often seriously misunderstood antiquity.
They did so not only as scholars in the style of their age, but, above all, as jurists following the
professional and objective necessity of their rank, in order to assert their independence vis-a-vis the
theologians. As state jurists, they had to provide distinct and specifically state-juridical arguments
vis-a-vis church theologians.
Great systems of legal philosophy arose only later, during the Baroque Age. At first, the right of war
constituted the core of every international law, and, in practice, diplomatic law was central to the
discussion. For the rest, every state sought to create (by means of specific treaties) a positive Jus
Publicum Europaeum that would give it a juridical advantage by stabilizing a favorable status quo.
Such a science of international law no longer could remain conscious of its own historical premises.
It split into two antithetical tendencies .
On the one side, a systematic philosophical approach based on natural law (Pufendorf, Thomasius,
Christian Wolff, and Kant) sought to produce a purely intellectual system of thought independent. In
terms of concrete practice and matters internal to the state, it led to promotion of the Rechtsstaat
[literally: law state; figuratively: liberal state] and a civil society based on individualism as the
constitutional world standard.
On the other side, however, a practical-positivistic approach turned the jurist into a mere assistant
to the state and a mere functionary of the legality of a status quo fixed in international treaties.
Both Grotius and Pufendorf, the two most celebrated and influential thinkers of 17th century
international law, belong to this situation in legal history. By no means were they pioneers in the
sense of having formulated the fundamental concepts of the new international law among states ,
least of all the new concept of war. This honor goes to those jurists of the last decades of the 16th
century: Ayala and Gentili.
For a consideration of international law, first Bodin, then Ayala, Gentili and Zouch must be included
among those authors whose thinking is radical in a specific sense, because they made the concept of
justus hostis useful for the new international law among states.
As great as the contrast between the philosophical and the positivistic approach may seem, none of
these teachers of international law appears to have recognized the central question, i.e. the new
spatial order emerging with the European land-appropriation of the New World.
Only in the second half of the 18th century did international law jurists begin to appreciate the spatial
problem of a European balance. Yet, they held to an internal European perspective and, for the most
part, did not see that the order of the Jus Publicum Europaeum was already global.
Grotius alone became creator and innovator of a new civil law construction that all jurists still take
for granted, most without being aware of its origins. Specifically, he discerned the distinction
between “original” and “derivative” acquisition of property that arose in the 17th century in the
course of efforts to find a new nomos of the earth that had been necessitated by the great land-
appropriation.
Despite some treaties concluded by European discoverers and conquerors with native princes and
chiefs, no European power considered itself to be the legal successor of the natives. Rather,
European powers regarded their colonial land acquisitions as original, both with respect to earlier
non-European inhabitants and to their European rivals. From the standpoint of the history of civil
law, the distinction between original and derivative acquisition is not classical. It derives from a
chapter in Grotius’s treaty “De jure belli ac pacis”.
Grotius speaks in general terms, without referring to America, of a land-division, a divisio, as a type
of original property acquisition that had occurred in ancient times. By divisio, he understands the
first original land-division and land-appropriation.
Pufendorf also recognizes a type of original property acquisition that takes the form of a “common
seizure by a majority of persons.” He characterizes it as the creation of “general property”, and thus
distinguishes it from the origin of specific private property. This is very close to actual land-
appropriation.
Both Grotius and Pufendorf distinguish between jus gentium and jus civile (civil law); both emphasize
the difference between public authority (imperium or jurisdictio) and private civil ownership
(dominium).
They leave the concept of occupation in an even greyer area - between jus gentium and jus civile, as
well as between the acquisition of imperium (or jurisdictio) over human beings and the acquisition of
dominium, i.e. private ownership of things.
For 17th and 18th century international law, this was no longer an essential question; its practical
interest was directed to the struggle among European states on European soil that had been ignited
by the land-appropriation of the New World. The legal title of the Portuguese and the Spanish, based
on papal awards of missionary mandates, no longer was applicable.
This left discovery and occupation as the only legal title to land-appropriation recognized by the
European powers.

Two tendencies:

-A systematic philosophical approach based on natural law

-A practical-positivistic approach turned the jurist into a mere assistant to the state
LECTURE 7 - THE JUS PUBLICUM EUROPAEUM: THE STATE

OVERCOMING OF CIVIL WAR

The appearance of vast free spaces and the land-appropriation of a new world made possible a new
European international law among states: an interstate structure.
In the epoch of interstate international law, which lasted from the 16th to the end of the 19th
century, there was real progress, namely a limiting and bracketing of European wars.
A balance of territorial states on the European continent in relation to the maritime British Empire
and against the background of vast free spaces.
Given the fact that independent powers, with unified central governments and administrations, and
well-defined borders had arisen on European soil, the appropriate agencies of a new jus gentium
were in place.
The first effective rationalization of the spatial form “state”, in terms of both domestic and foreign
policy, was achieved by the detheologization of public life and the neutralization of the antitheses of
creedal civil wars.
The conflicts between religious factions had been resolved by a public-legal decision for the
territorial domain of the state - a decision no longer ecclesiastical, but political, even state-political.
Detheologization had an obvious effect on the new interstate order of the European continent and
on the inter-European form of war that had arisen since the European land appropriation of the New
World: the rationalization and humanization of war, i.e. the possibility of bracketing war in
international law.
This was made possible by the overcoming of creedal disputes which, in the religious wars of the
16th and 17th centuries, had justified the worst atrocities. War had degenerated into civil war.
The relation between just war and total war already was visible, as was the equally significant
relation between just and total war and domestic and civil war in the religious wars of the 16th and
17th centuries.
War now became a “war in form”. Only in this way, only by limiting war to conflicts between
territorially defined European states, could a conflict between these spatially defined units be
conceived of as personae publicae (public persons) living on common European soil and belonging to
the same European family. Thus, it was possible for each side to recognize the other as justi hostes.
The non-European soil of the rest of the earth in this global, but not yet completely Eurocentric
spatial order was free, i.e. free to be occupied by European states.
Compared to the brutality of religious and factional wars, which by nature are wars of annihilation
wherein the enemy is treated as a criminal and a pirate, and compared to colonial wars, which are
pursued against “wild” peoples, European “war in form” signified the strongest possible
rationalization and humanization of war.
A peace treaty with the vanquished party thus became possible. In this way, European international
law succeeded in bracketing war, with the help of the concept of “state”.
The equality of sovereigns made them equally legal partners in war and prevented military methods
of annihilation.
The concept of justus hostis also created the possibility of neutrality for third party states in
international law.
Juridically, it no longer implies any question of guilt, any substantive moral question, and, above all,
any juridical question of a justa causa in a normative sense. The justice of war no longer is based on
conformity with the content of theological, moral, or juridical norms, but on the institutional and
structural quality of political forms.
A duel is not “just” because the just side always wins, but because there are certain guarantees in
the preservation of the form.
Precisely in the sense of the European international law of the interstate epoch, all wars on
European soil between the militarily organized armies of states recognized by European
international law were pursued according to the European laws of war: interstate war.

• Detheologization => rationalization and humanization of war

• States => public persons => iusti hostes
• Justice of war => institutional and political preservation of the form
WAR AS A RELATION BETWEEN SOVEREIGNS

A decisive step toward this great new institution called “state” and the new interstate international
law was taken in that these new, contiguous, and contained power complexes were represented as
persons. These states were conceived of as magni homines (great men).
This personification was important for the conceptual construction of the new interstate
international law, because only thereby did 16th and 17th century jurists, schooled as they were in
Roman legal concepts, find a point of departure for their juridical constructions.
This was of great significance, because thereby war became a relation among persons who mutually
recognized a rank. Sovereigns recognized one another as such, i.e. as having a mutual and common
relation.
Only in this way the concept of justus hostis, found among ancient authors, was able to obtain a
concrete new significance. This concept of justus hostis acquired a completely different and higher
power of order than justum bellum.
It is obvious that there are many reasons in the history of ideas for the origin of personae morales
and “great men”, and that one of these reasons, at least since Jacob Burckhardt, has been the effect
of Renaissance individualism, which often is cited. While we will not elaborate on this, we must note
the psychological phenomenon of Renaissance individualism.
Still, it alone did not create any new international law, which was much more a matter of the
connection between spatial power complexes and representative persons. But only in the Baroque
Age of the 17th century did representative, sovereign, state personalities develop in full measure.
However, essentially this State was a unified, self-contained area of European soil that became
recognized as a magnum homo (great man); only now it was in the form a legal subject and a
sovereign “person”. Moreover, European sovereignty remained personally a close-knit family,
through consanguinity and succession. They continued to wage their wars as wars of succession into
the 18th century.
Philosophers and jurists then could argue about how the new magnus homo would be considered.
Later, they also could question whether the state was the representative of princes or whether it
was represented by them as a territorial unity and whether the state should be considered to be the
essential representative and true subject of sovereignty and of the new interstate jus gentium.
At that time, jurisprudence meant the science of Roman law. The science of the new international
law thus could not be separated from Roman law.
However, Roman civil law now found a point of reference for juridical thinking in the persona
publica (public persons) of European states. As a consequence of personalization, relations among
sovereign states were able to be conducted with comitas (courtesy) and with jus (probity).
At any rate, thereafter, the analogy between states and human persons in international law - the
international personal analogy - became predominant in all international law considerations. Only in
this way did the jus gentium, as treated by jurists, become amenable and, thereby, a new and
independent discipline of the juridical faculty. Only through the personalization of European
territorial states did a jurisprudence of interstate jus inter gentes arise.
One can view this situation as anarchistic, but certainly not as lawless. Because sovereign persons
“by nature”, i.e. in a state of nature, are equal, namely “in the equal quality of sovereign persons”,
they have neither a common legislator nor a common judge over them. This is the principle “par in
parem non habet jurisdictionem”.
Because each is the judge of his own affairs, he is bound only by his own treaties, whose
interpretation is his own business. Because each is as sovereign as the other, each has the same jus
ad bellum (right to war).

COMPREHENSIVE SPATIAL ORDER

At first glance, everything in this interstate international law among equal sovereigns appears to
have hinged on the thin thread of treaties that bound these leviathans together, on the principle
pacta sunt servanda (pacts are observed), on ties voluntarily contracted by sovereigns who
otherwise would be remained unrestrained. But, in reality, strong traditionalities - religious, social,
and economic - endure longer.
The binding power of a Eurocentric spatial order encompassing all these sovereigns was the essential
and very effective bond. The core of this nomos lies in the division of European soil into state
territories with firm borders, which immediately initiated an important distinction, namely that this
soil of recognized European states and their land had a special territorial status in international law.
It was distinguished from the “free” soil of non-European princes and peoples open for European
land-appropriations.
In addition, there arose yet a third area as a result of the new freedom of the sea, which in this form
had been unknown to the previous international law.
This was the spatial structure inherent in the idea of a balance of European states. It made possible a
continental law of European sovereigns against the background of the immense open spaces of a
particular type of freedom: the freedom of the sea.
It becomes obvious that the sovereign, European, territorial state (the word “state” always is
understood in its concrete historical sense as characteristic of an epoch from about 1492 to 1890)
constituted the only ordering institution at this time.

DOCTRINE OF STATE AND WAR

If we analyze Hegel's reputedly metaphysical constructions, we will find that they have a thoroughly
practical and political historical meaning. Hegel's supposedly high-flown formulations signify the fact
that the state was the spatially concrete historical, organizational form of this epoch, which, at least
on European soil, had become the agency of progress in the sense of increasing the rationalization
and the bracketing of war.
We can analyze also Rousseau's world-famous maxim found in his “Contrat social”: “La guerre est
une relation d 'Etat à Etat”. Rousseau took advantage of the ambiguity the word “etat” allows.
One can write it either in lower or in upper case: “etat” or “Etat”. According to Rousseau, war is a
condition, an “etat de guerre” (“etat”, lower case). On this basis he should have written that war is
possible for an “etat”, only “Etat to Etat” (“Etat”, now upper case).
Because war is an “etat” (again, lower case), while the state (“Etat”, again upper case) means that
consequently it can have not a man, but only another state as an enemy.
The great effect of any reference to “etat” and “Etat” presupposes the whole rationalizing power of
the concept “state”.
It is a tragic irony that Rousseau's social contract, with its purely state-centered concept of war,
turned up in the Jacobin Bible. It even turned up among those Jacobins who defamed the classical,
purely military war among states that had developed in the 18th century.
They claimed that it was a “museum piece” of the ancient regime, and rejected, as the work of
tyrants and despots, the liquidation of civil war and the bracketing of foreign war that the state had
achieved. They replaced purely state war with national war and the democratic mass uprising.
Even after the tremors of the Napoleonic wars, however, this common opinion still had the power to
reestablish and restore the specific state-bracketing of war for the entire 19th century.

Hegel => spatially concrete historical, organizational form

Rousseau => “La guerre est une relation d 'Etat a Etat”

Jacobins => mass uprising

LECTURE 8 - THE JUS PUBLICUM EUROPAEUM: NON-DISCRIMINATORY STATE WARS

BALTHAZAR AYALA
"On the Law of War and of Duties Connected with War and on Military Discipline’’

It is much more useful to examine the thinking from the 16th to the 18th century that became
crystallized in a humanized concept of war. Special attention should be paid to a few great jurists of
international law who elaborated the concept of war within an interstate European spatial order.
Jean Bodin, the real founder of this new, specifically state law, had enunciated the essential point,
namely the bracketing of war through a new, specifically state-centered order.
Let us begin with Balthazar Ayala who, as legal advisor to the Spanish army leader in the rebellious
Netherlands, in 1582 published his three books-treaty “On the Law of War and of Duties Connected
with War and on Military Discipline”.
Ayala demonstrates, often with reference to Bodin's “Respublica” and his “Methodus”, the
transparent effect of Bodin's legal expertise in general and of his new, state centered concept of
sovereignty in particular.
These Spanish Dutchmen naturally defended their position with respect to the rebellious
Netherlands, by stressing the distinction between civil wars and wars pursued by representatives of
sovereign state power among themselves. Private war was expressly designated as non-war. If a
private person pursued a rebellion, he was a “rebel” and a rebel was not a justus hostis.
The very concept of justus hostis shifted the whole problem of the legitimacy of war to the clearest
formalization of war pursued between two sovereign states.
So the question of bellum justum was distinguished sharply from that of justa causa belli.
Justum bellum now is war between justi hostes; “just” in the sense of “just war” means the same as
“impeccable” or “perfect” in the sense of formal justice.
Justice in a purely formal sense applied only to public war, which meant any public war pursued by
equal sovereigns recognizing one another as equals and playing by the same rules.
The medieval concept of war already had been transformed by the turn to interstate war. This
transformation was based on four arguments, which were implicit in the late medieval doctrine, but
which obtained their groundbreaking and world-historical power in international law only through
Bodin's concept of state sovereignty.
Three of these four arguments are recognizable in Ayala' s works, which is why they constitute a
historical turning point in the history of law.
First, the characteristic of “war in the legal sense” is removed from the substantive justice of justa
causa, and is shifted to the formal qualities of one of the sovereign representatives of summa
potestas (highest power), of public-legal, i.e. of interstate war.
Second, the concept of just war is formalized by the concept of a just enemy; the concept of the
enemy then is reoriented in the concept of justus hostis to the qualities of the state sovereign.
Third, whether or not a justa causa obtains is a decision exclusive to each state sovereign.
To these three formal viewpoints, already recognizable with Ayala, was added a typically relativistic
and agnostic argument that developed over time and became increasingly important. This is the
consideration that it is difficult, even impossible to determine unequivocally and conclusively which
side has just grounds for war.

DOUBTS ABOUT “JUST WAR”

In the 13th century Aquinas had offered four requisites for just war: the pure goal of peace without
hate and ambition, justa causa, declaration of war by legitimate authority and the prohibition of any
untruths. What agnostic and skeptical motives came up with, humanists continued the elaboration.
Increasingly, it was claimed that it is scarcely possible to decide concretely which of the warring
states is actually ad fully in the right.
Of course, one must concede the possibility that both sides can be in the wrong. The bellum utraque
parte injustum (war is unjust on both sides) was a principle of medieval doctrine. By the same token,
the other and opposite possibility of a bellum utraque parte justum (war is just on both sides)
existed, at least in the subjective convictions of both sides.
At least since Bodin, a true jurist would confront this skeptical and agnostic disposition with a
decisionist formulation of the question that is immediately given with the concept of state
sovereignty: who then is in a position to decide authoritatively on all the obvious, but impenetrable
questions of fact and law pertinent to the question of justa causa?
In reality, juridical interest no longer was concerned with the normative content of justice and the
substantive content of justa causa, but rather with form, procedure and jurisdiction in international
as well as domestic law. A simple question was raised with respect to the interminable legal disputes
inherent in every claim to justa causa: who decides?
Only the sovereign could decide this question, both within the State and between the States.
There can be only a decisionist answer: each sovereign state-person decides autonomously
concerning justa causa.
The State that does not decide remains neutral and, vice versa, the neutral state abstains from
deciding the justice or injustice of the belligerent states.
European state war, thus, became an armed struggle between hostes equaliter justi.
It must be remembered that the historical significance of the modern state consists in its having
ended the whole struggle over justa causa, i.e. concerning substantive right and substantive justice
understood in the early feudal-legal, estate legal, or creedal-theological sense.
Within this state, there were no more enemies, and state jurists knew they no longer would begin
with the concept of enmity.
The sovereign territorial state initiated war “in form” - not through norms, but through the fact that
it bracketed war on the basis of mutual territoriality, and made war on European soil into a relation
between specific, spatially concrete, and organized orders, i.e. into a military action of state-
organized armies against similarly-organized armies on the opposing side.
A non-public war is a non-state war. Not only was it illegitimate; it was no longer war in the sense of
the new international law. It could be anything else: rebellion, mutiny, breach of the peace,
barbarism, and piracy - but not war in the sense of the new European international law.

ALBERICO GENTILI - “On the Law of War”

Another fundamental work for these theorical developments is Gentili's first commentary “On the
Law of War”.
As with Ayala, the direct influence of Bodin on Gentili is recognizable. Only in this way were the
learned perceptions of such great jurists as Budaeus and Alciatus concretely realized in international
law.
Many of Gentili’s important definitions agree with those of Ayala. But Gentili's formulations were
much more determined and deliberate than were Ayala's, and had far greater juridical power of
form, given their convinced humanistic rationalism and their striking linguistic style.
It was Gentili who succeeded in creating a new concept of war based on the sovereign state - on the
aequalitas of the justi hostes - rather than on the justice or injustice of the reasons for war offered
by either side. This was the decisive turning point, at least in the thinking of the intellectual vanguard
at that time.
Vitoria is cited often, but only as an argument against the theological handling of the question of war
in international law. The State was established as the new, rational order, as the historical agency of
detheologization and rationalization.
The first stage of its juridical self-consciousness was attained in the thinking of two jurists: Bodin and
Gentili.

GROTIUS ON “JUST WAR”

Compared to the ideas of these two jurists, let alone to the later systematic clarity and conceptual
power of Hobbes, Grotius’s line of argument, in all important respects, is unsteady and uncertain.
The reason for the confusion, as we have seen, lies mostly in the inability to distinguish between
bellum justum as a formal juridical concept of a concrete order and the substantive question of
justae causae, of the just causes of war. Consequently, traditional scholastic formulations of just war
continued to appear in his juridical expositions.
In terms of international law and in this context, the claim to pursue a one-sided just war is of
interest only with respect to one singular and entirely specific viewpoint: it is conceivable that a
belligerent state might claim legitimately that the other side was pursuing an unjust war.
This could be done if its opponent's actions tended to deny the existing interstate spatial order of
European international law (in which the claims of both sides had their legitimacy) as the fundament
of the entire European order, and, in so doing, to upset the axis of that order.
That is the meaning of a doctrine deriving from the European balance, such as obtained in 18 th
century international law, whereby war against the disturber of this balance was considered to be
permissible and, therefore, “justified” in this specific spatial sense.
This balance was threatened during the Napoleonic wars.
However, this spatial order and its concept of balance was the essential presupposition and
foundation upon which the European Great Powers based their practical policy of colonial expansion
into the free spaces of the globe from the 17th to the 19th century.
Everything essential about a “war in form” between two justi hostes, whereby justus expresses only
a formal perfection, as both Ayala and Gentili emphasize, is found in what Grotius says about just
war. Nevertheless, he seriously confuses the concepts.
Completely in line with traditional theological expressions of the Middle Ages, he argues that one
can pursue war only ex justa causa. Moreover, he still speaks of “private wars” and considers them
to be wars in the sense of international law. But simultaneously, he says that they cannot be
included legitimately in the definition of war.
So, in Grotius' view, does prize law presuppose a just war in the sense of justa causa? Does only the
belligerent power, which proceeds ex justa causa, have a right of plunder that its opponent is
denied?
Both theoretically and practically, this question is more significant than is any other, because the
best formulated demands of justa causa are meaningless if the belligerent power that pursues
unjust war has the same rights of plunder and capture in international law as does its opponent who
pursues a just war.
To this concrete question, which obviously is more interesting than are all general postulates of
justa causa, Grotius answered with amazing certainty. Grotius says that, according to jus gentium,
not only the power that proceeds ex justa causa, but every power that pursues a formal war, can
reclaim the enemy confiscated.

RICHARD ZOUCH

The first philosophical and systematic foundation of the new institution called “state” was laid in
Hobbes’s treaty “Leviathan”. We will have occasion to refer often to Hobbes’s book, since for more
than a century it determined all modern “thinking in terms of states”.
However, among 17th century juridical authors, Richard Zouch (1590- 1 660), a successor to Gentili 's
chair, became famous in the history of international law.
In his treaty “Exposition of Law and Procedure, or of Law Between Nations, and Questions
Concerning the Same”, he used the formula that became generally recognized as indicative of the
new interstate structure of European international law: jus inter gentes (law among nations).
Zouch presents the concept of jus inter gentes in a clear and systematic way, distinguishing relations:
1. between individuals, 2. between sovereigns and subjects and 3. among sovereigns.
This tripartite division provided a binding methodological determination that still remains valid
today. The crucial influence of Bodin and of Hobbes clearly is recognizable in the concept of jus inter
gentes.
Zouch distinguishes various types of domination (dominatio [dominion], praepotentia [superior
power], patrocinium [patronage]), and, on this basis, determines various types of enemies.
Thereby, he legitimates corresponding types of war that are not interstate, and thus presuppose
various concepts of international law. In Section 7 of Zouch's book, he distinguishes, under the
heading “De statu inter eos quibuscum bellum” (“On the Status of Those Involved in War”), the
following types of opposition, such as would obtain in a struggle between free and equal sovereigns
(those bound neither by dominatio nor by praepotentia or beneficium [benefaction]):
- An inimicus is an opponent with whom there is no friendship, no amicitial or legal community, no
hospitium (hospitality), and no foedus (covenant). These are no hostes, because in wars between
such inimici possessions are not respected.
-An adversarius is an opponent with whom legal community (juris communio) exists. Such a
community is destroyed only by war, as in the civil war.
-A hostes, in the original sense, is an opponent one may injure and kill. But this depends upon
whether or not he has the jura belli, i.e. whether or not he is a justus hostis.
Traitors and rebels who pursue war against their princes or their state, and pirates on the high sea
have no jura belli. The term justi hostes refers only to opponents who must be treated according to
rules of war in international law.
Decisive here is the determination of war on the basis of the type of enemy.

LECTURE 9 - THE JUS PUBLICUM EUROPAEUM: FREEDOM OF THE SEA

FIRM LAND AND FREE SEA

In the perspective of the Jus Publicum Europaeum, all land on the earth belonged either to European
states or to those of equal standing, or it was land free to be occupied, i.e. potential state territory
or potential colonies.
The sea remained outside any specific state spatial order: it was neither state or colonial territory
nor occupiable space.
It was the only territorial surface free of all states and open for trade, fishing, and the free pursuit of
maritime wars and prize law, without regard to proximity or geographical borders.
Thus, land and sea were divided into two separate and distinct global orders within the Eurocentric
world order that arose in the 16th century.
For the first time in human history, the antithesis of land and sea became the universal foundation of
a global international law.
Thus, two universal and global orders confronted each other without being able to assume the
relation between universal and particular law.
Each was universal in its own right. Each had its own concepts of enemy, war, booty, and freedom.
The connecting link between the different orders of land and sea I became the island of England.
England alone took the step from a medieval feudal and terrestrial existence to a purely maritime
existence that balanced the whole terrestrial world.
England thereby became the representative of the universal maritime sphere of a Eurocentric global
order, the guardian of the other side of the Jus Publicum Europaeum, the sovereign of the balance of
land and sea, of an equilibrium comprising the spatially ordered thinking of this international law.
The great balance of land and sea affected an equilibrium among the continental states and
hindered a simultaneous maritime equilibrium of sea powers.
To this extent, there was a continental, but not a maritime equilibrium.
After the middle of the 16th century, English freebooters appeared on all the world's oceans and
realized the new freedoms: first, the amity lines and the great land appropriation; then the new
freedom of the sea, which for them was a singularly great sea-appropriation.
They were pioneers of the new freedom of the sea, which essentially was a non-state freedom.
They were partisans of the sea in the transitional period of the world struggle between Catholic and
Protestant powers.
With them, the sharp distinctions between state and individual, public and private, even between
war and peace, and war and piracy, disappeared.
They succeeded in forging two notions of freedom from the state. Thereby, they were able to
determine the maritime side of the Jus Publicum Europaeum: the freedom of the sea and the
freedom of merchant traders, whose ships were essentially non-state vessels.
Both non-state spheres of freedom belonged to the nomos of the earth in the age of an otherwise
purely state-centered international law.

FREE SEA RES NULLIUS OR RES OMNIUM?

Like theologians, jurists of the transitional period needed a biblical interpretation, a ratio scripta
(written reason), and thus did not feel free to treat the freedom of the sea as “positive” science.
They continued to abide by traditional conceptual models of Roman law.
So attempts were made to understand the new phenomenon juridically by using traditional formulas
of res nullius (things belonging to nobody), res omnium (things belonging to everybody), matters of
common use, and similar ideograms.
In this century, it was not the traditional categories of Roman law that were groundbreaking with
regard to the newly discovered oceans, but something completely different, namely the ancient,
original, and elementary conviction that law and peace are oriented only to land.
We come closer to the core of the matter if we recall that all law is valid only in a certain place, and
that the peoples who comprehended the enormous actuality of a new world also sought to test the
new nomos of this new world.
We have observed that originally the sea had neither law, nor freedom, nor property. Whether the
sea should be considered res omnium or res nullius.
The Englishman considered the sea to be res omnium, whereas the Frenchman considered it to be
res nullius. We need not deal with all the subtle arguments and counter-arguments.
The argument against res omnium and the inherent construction of a condominium of all states with
respect to the surfaces of the sea relates essentially to the fact that there was no organized
community of states that could sustain such a condominium. That appears to be correct.
The attempt to view the sea as a crossroad common and open to all and, in this sense, as res
omnium, implies that every state has a right to pursue war with all the modern military means at its
disposal.

To sum up:

•Res nullius => belonging to nobody ( French thinkers)

•Res omnium => belonging to everybody (English thinkers)

•In reality => sea has neither law, nor freedom, nor property

ENGLAND’S TRANSITION TO A MARITIME EXISTENCE

One cannot say that 16th and 17th century English kings, statesmen, and jurists had a distinctive
maritime consciousness.
Only toward the end of the 17th century did England make a definitive decision against royal
absolutism and in favor of wide-ranging religious tolerance, and only then did she slowly, and
without any preconceived plan, take the maritime side in the great conflicts between terrestrial and
maritime worldviews.
In the long controversy over freedom of the sea, English governmental practice and official reports
lacked both a new principle and the clarity of new, carefully considered concepts.
Nevertheless, the English decision for the sea was greater and deeper than was the conceptually
clear decisionism of continental statehood.
The English island became the agency of the spatial turn to a new nomos of the Earth, and,
potentially, even the operational base for the later leap in the total rootlessness of modern
technology.
The fateful shadow had fallen, and, behind the image of a new world ordered from the sea, the
wider future of the industrial age was dawning. This age had begun on the island of England in the
18th century.

THE “HUNDRED-YEAR BOOK WAR”

Strictly speaking, the problem of the freedom of the sea concerned the freedom to pursue sea wars
and how this freedom collided with the freedom of neutrals to pursue trade, which was the case
when the same waters became simultaneously a theater of war and a scene of peace.
What Ernest Nys called the “hundred-year book war” over the freedom of the sea began only in the
latter half of the 16th century.
However, one should not allow the concrete significance of the publications to be submerged in the
plethora of titles with such catchwords as “freedom” or “exclusiveness” of the sea.
Until almost the end of the 17th century, English authors in this book war were interested primarily
in the so-called narrow seas, i.e. those closest to England.
Fisheries disputes dominate a great part of this literature.
Hugo Grotius' broadly conceived and anonymously published book, “Mare liberum” (1609), was trail-
blazing in regard to the new freedom of the sea and directed against English claims to a monopoly.
He does not comment on the spatial collision of war and peace ushered in with the new freedom of
the sea.
But he often reveals the original, elemental significance of the freedom of the sea, as when he says
that in every war the enemy should be killed, not only on one's own territory or on enemy or
unclaimed territory, but also on the open sea.
Nevertheless, Grotius’s book and its title, “Mare liberum”, signaled the development of a new stage
of the freedom of the sea.
By comparison, the famous English refutation by John Selden, “Mare clausum” despite all its
erudition, remained completely within the framework of old ideas and questions.
Sir Philip Meadows appears to have been the first author to treat England's exclusive claims to the
sea as long outdated, and to see that “freedom of the sea” was portending a new dominion over the
world's oceans (Sir Philip Meadows, “Observations Concerning the Dominion and Sovereignty of the
Seas, being an Abstract of the Marine Affairs of England” published in London in 1689).
The German philosopher Samuel Pufendorf, whose great work appeared in 1672, was one of the first
systematic thinkers to have a juridical concept of the world's oceans as something other than “the
rivers and streams” of traditional jurisprudence, with their models based on civil law.
So, a new period of the Jus Publicum Europaeum began in 1713 with the Treaty of Utrecht, when the
consciousness and even self-consciousness of the approaching global equilibrium of land and sea
developed.

•Grotius => new stage of freedom of the sea

•Selden => traditionally oriented

•Meadows => real consciousness of dominion over the oceans

•Pufendorf => elaborate a distinct concept for world's oceans

SYSTEMATIC FREEDOM OF THE SEA

Two different concepts of this freedom can be identified, corresponding to two distinct chronological
periods separated by the caesura of the Treaty of Utrecht.
During the first period, the ancient, original, and elemental view emerged, namely that the sea is
impervious to human law and human order, that it is a realm free for tests of strength.
That is the meaning of the delimitation of amity lines and of the establishment of zones free for the
right of the stronger.
During the second period, this freedom was limited by the fact that state control over the pirate
ships of its own subjects became stronger, while the old style freebooters sank to the level of
criminal pirates.
Nevertheless, the high sea remained· free of the spatial order of firm land organized by States. This is
how the great equilibrium of land and sea originated. On this basis, the nomos of the earth was able
to last for more than two centuries.
During the first period, the juridical argument of scholastic natural law and forms of civil law held
sway. A certain group of advisors to political leaders succeeded in reaching intellectual agreement
and consisted of an artificial language created by a stratum of humanistically educated intellectuals
seeking to make the transition from ecclesiastical to political thinking.

DISTINCTIONS AND DIVISIONS

In this new epoch, the following distinctions and divisions were characteristic of the nomos of the
earth. The distinction between the surfaces of firm land and free sea, which was important for the
distinction between land war and sea war. Each had its own concepts of enemy, war, and plunder.
The distinction between the surface areas of firm land, the soil of European states, i.e. state areas in
the specific sense, and the soil of overseas possessions, i.e. colonial lands.
This was important for the definition of colonial war. The bracketing of war pertained only to
European land wars among states, pursued on European soil or on soil having the same status.

LECTURE 10 - THE JUS PUBLICUM EUROPAEUM: TERRITORIAL CHANGES

TERRITORIAL CHANGES OUTSIDE AND INSIDE A SPATIAL ORDER

Every spatial order contains a bracketing for all its agents and participants - a spatial guarantee of its
soil. This raises the core question of international law. On the one hand, changes of territorial
possessions are unavoidable; on the other, territorial changes can become dangerous for the
continuance of the common spatial order. This theoretical and practical, legal-philosophical and
political problem is old.
The problem of peaceful change does not concern all the various and sundry contractual and
technical changes that are part and parcel of peoples living together.
In reality, it concerns only the question of how new land- and sea-appropriations or new divisions
can be settled without jeopardizing the existence of the recognized members or the whole structure
of the existing order of international law.
The procedures for territorial changes in European international law were developed by the Great
Powers at the major peace conferences in the 18th and 19th centuries.
Every order of international law must guarantee, if it does not disavow itself, not the given territorial
status quo of a particular historical moment, with all its many details and more or less contingent
circumstances, but rather its fundamental nomos - its spatial structure, the unity of order and
orientation.
War does not disturb this order. But certain damaging and destructive methods and goals of
pursuing war disturb the traditional bracketing of war.
Certainly, there were such wars, which jeopardized and destroyed earlier orders. But the essential
juridical question is concerned not with the moral or philosophical problem of war and the
application of force in general, but with something entirely different, namely with changes in the
territorial status quo and its effect on the given spatial order of an epoch.
Wars between such Great Powers, between the guardians of a particular spatial order, easily can
rupture the spatial order if they do not function around and within a free space. Such wars then
become total, in the sense that they must precipitate the constitution of a new spatial order.
The essence of European international law was the bracketing of war.
The essence of such wars was a regulated contest of forces gauged by witnesses in a bracketed
space. Such wars are the opposite of disorder. They represent the highest form of order within the
scope of human power.
They are the only protection against a circle of increasing reprisals, i.e. against nihilistic hatreds and
reactions whose meaningless goal lies in mutual destruction.
The removal and avoidance of wars of destruction is possible only when a form for the gauging of
forces is found.
This is possible only when the opponent is recognized as an enemy on equal grounds - as a justus
hostis. This is the given foundation for a bracketing of war.
The particularly difficult questions are raised with respect to definitive land-appropriations that
occur on designated soil between members of a common spatial order of international law.
The land-appropriation in such cases is internal to international law. Thus, the territorial change is
accomplished within a common spatial order and is concerned with soil that cannot be occupied
freely. If the common spatial order, despite such a territorial change, is not to be destroyed, then
this change must remain within the total spatial order, must proceed in a certain manner, and must
be recognized accordingly.
With respect to the structure of the common and comprehensive spatial order, all states are
participants. The binding character of a comprehensive spatial order immediately is recognizable if
the spatial order is conceived of as a balance.
The concept of a political balance is significant only in the sense that it provides a picture of a
comprehensive spatial order of European states. Not only the contractual parties directly concerned,
but all participants are affected by a change in, or threat to the balance.
Every power had an interest in any important territorial change within the European state system,
while enormous territorial acquisitions outside Europe, such as the Russian conquest of Siberia,
proceeded almost unnoticed.

TERRITORIAL CHANGES

All great territorial changes, new formations of states, and declarations of independence and
neutrality in the history of European interstate international law were achieved as collective
agreements at European conferences or at least were sanctioned by them.
Lasting neutralizations of states - Switzerland in 1815 and Belgium in 1831-39 - were primarily
matters of collective agreements among the European Great Powers, because thereby particular
state areas acquired a specific status in international law, in that they ceased to be theaters of war.
The collective agreements of the great European peace conferences – 1648 (Westphalia), 1713
(Utrecht), 1814-15 (Wien), 1856 (Paris), 1878 (Berlin), 1885 (the Congo Conference) - define the
individual stages in the development of this international law as a spatial order.
The Great Powers were in the forefront, because they were the strongest participants in the
common spatial order.
Recognition as a Great Power by another Great Power is the highest form of recognition in
international law. This recognition is mutual at the highest level.
Such recognition of the United States of America, which textbooks date to 1865, was a singular and
special problem in the 19th century, because the principles of American foreign policy, expressed in
the Monroe Doctrine of 1823, constituted a fundamental rejection of recognition as conceived by
the European powers.
Recognition of Japan as a Great Power is dated to 1894 (the Sino-Japanese War), as well as to 1904-
05, following the Russo-Japanese War.
The transition to a new, no longer Eurocentric world order began from Asia with the inclusion of an
East Asian Great Power.
This was true not only because recognition of the jus belli and the justus hostis obtained their prime
significance in the recognition of a Great Power, but also for a reason concerning the spatial order:
that recognition as a Great Power was the most important legal institution of international law with
respect to land-appropriation.
It signified the right to participate in European conferences and negotiations, which was
fundamental for the reality of European interstate international law.
This demonstrated more clearly than in the fact that the comprehensive unity the interstate order of
sovereign powers granted its legal force was based not on the reputed sovereign will of any one
member, but on belonging to a common space and soil. The division of this common space and soil
was indicative of the comprehensive nomos of this order.
The free right to war, the sovereign jus ad bellum, allowed every member of this order to intervene
formally at any time and, if need be, to insist upon participating in the common deliberations and
decisions.
These were applied conscientiously to the existing spatial adaptations until the old spatial order was
destroyed, i.e. when the specifically European order dissolved into a spaceless universalism, and no
new order took its place.

STATE SUCCESSION

Within the former interstate order of international law that was obtained among members of the
international law community, jurisprudence had developed a doctrine of state succession for
definitive land-appropriation.
There is general theoretical agreement that a change in territorial sovereignty occurs with so-called
“state succession”, whereby the sovereignty of one state over a particular piece of land is replaced
by the sovereignty of another.
On this basis, what is called state succession in the 19th and 20th centuries developed as a typical
legal institution for land-appropriation within an existing spatial order.
The change of state sovereignty over a particular area that is conceived of as a succession means
that claims and duties with respect to the new territorial sovereign are grounded in international
law.
The methods of empty normative generalizations are indicative in their deceptive abstractness,
because they fundamentally disregard all concrete spatial viewpoints when considering a typical
spatial problem such as territorial change.
At least there was agreement that a new territorial sovereign must respect private, vested interests
and rights.
The projection of sovereignty by the new territorial sovereign over the acquired land - the land-
appropriation - can lead us to think only that the earlier sovereignty over the area had ended and
that the new sovereignty had been established. Among the individual sovereign states, one cannot
speak of a reversion in the sense of a diversion of rights, of a derivation or succession in terms of the
earlier legal situation.
What comes to mind is the similarity with old Roman law formulas regarding the acquisition of
goods, namely that there can be no derivative acquisition of goods.
In interstate international law, where everything should hinge on the effectiveness of sovereign
state power, it appears that there can be none other than an intentional succession.
Now, however, and despite the claims and obligations of international law, the relation to third party
states enters the picture.
This is a different problem for a definitive land-appropriation than for a provisional, only temporary
land-appropriation, which finds its order in the legal institution of military occupation.
In a definitive land-appropriation, the former ruler is definitively retired; he has surrendered. This
allows the new territorial sovereign to appear as the original appropriator.
In these cases Continental jurists of international law are inclined to deny a legal succession.
Nevertheless, at least with respect to the appropriation of European soil, we are concerned with a
succession, if not always with a state succession, because the territorial change proceeds within the
framework of a comprehensive spatial order, and is conceived of as such by both the former and the
new territorial sovereign. In these cases Anglo-Saxon authors speak often of a legal succession in the
sense of a derivative appropriation.
The second viewpoint that throws some light on the contradictory doctrine of state succession can
be obtained from the economic side of the spatial problem.
It accounts for the unanimity on the principle of respect for vested private rights.
The universally recognized economic constitution had created a common economic space. In the
19th century, this was an order of free and independent economies. Protectionism at that time did
not suspend the fundamental fact of a common and free economy. This economy constituted its
own space of international law: a common free market transcending the political borders of
sovereign states. In terms of constitutional law, all states belonging to this order of international law
had in common a certain relation of public and private law, of state and state-free society.
Behind the foreground of recognized state sovereignty, the private sphere, which in this particular
case means the sphere of private economy and private property, largely remained undisturbed by
the territorial change.
All civilized states subscribed to the distinction between public and private law, as well as to the
common standard of liberal constitutionalism; for all, property, and thus trade, economy, and
industry belonged to the sphere of constitutionally protected private property.
This constitutional standard was recognized as fundamental by all states party to the territorial
change.
This, then, is the decisive viewpoint for our question: a territorial change was no constitutional
change in the sense of the social order and of property. Property was a part of the order of
international law.

SUCCESSION IN NON-EUROPEAN TERRITORIES

A completely different problem from land-appropriation, which proceeded inside Europe in the form
of changes in the political sphere regarding a state area with a common legal order of property and
economy, was land-appropriation of free colonial soil outside Europe.
This soil was free to be occupied, as long as it did not belong to a state in the sense of internal
European interstate law. The power of indigenous chieftains over completely uncivilized peoples was
not considered to be in the public sphere; native use of the soil was not considered to be private
property.
One could not speak logically of a legal succession in an imperium, not even when a European land-
appropriator had concluded treaties with indigenous princes or chieftains.
International law considerations benefiting the property rights of natives, such as those recognized
in questions of state succession in the liberal age favoring property rights to land and acquired
wealth, did not exist on colonial soil.
A lot of various possibilities were undertaken in the praxis of 19th and 20th century colonial land-
appropriations. They were neither international interstate nor international private law matters, but
even so they were not purely intrastate matters. The special territorial status of colonies thus was as
clear as was the division of the earth between state territory and colonial territory.

LECTURE 11 - OCCUPATIO BELLICA

PROVISIONAL OCCUPATION: XVI, XVII and XVIII century situation

A practical question: what was the effect on international law of the military occupation of areas
foreign to, but included within the framework of the common spatial order? This question concerns
the land-appropriation of soil not free to be occupied. As long as war was pursued according to legal
claims in the sense of feudal law or the dynastic right of kings, in international law it was considered
to be the realization and the execution of law in the sense of self-defense.
What he took from his opponent he considered to be his good right or as security for such.
However, the problem is difficult in the case of a non-discriminatory concept of war among
sovereign states in interstate international law.
Logically, there is no inherent legal institution of military occupation, but obviously for completely
different and even opposite reasons from the medieval concept.
Thus, it was characteristic of the logic of an international law among sovereign states that an
immediate change of sovereignty occurred with every effective, state-military occupation of an area,
unless the occupying state, by its sovereign will, chose not to substitute its sovereign will for that of
another.
In fact, since the construction of the modern sovereign state in the 17th and 18th centuries, the
accepted practice was that military occupation signaled an immediate change of sovereignty.
Nevertheless, European wars of the 17th and 18th centuries were pursued largely as dynastic wars
of succession. In wars fought in alliance with other powers, it often was unclear which of the
occupying armies had occupied the area.
The 18th century occupier largely left intact the former law, in particular private law; private
property and well-established rights, i.e. the social structure as a whole, largely remained
untouched.
Thus, with occupation, the problem of land-appropriation was not always sharply defined in practice.
The immediate change in sovereignty as a result of military occupation did not have the practical
effect of a complete land-appropriation. It did not concern the constitution, in the complete social
and economic sense of the word, but only the person of the ruler and his entourage, as well as state
administration and justice.
The state extended its centralizing power over all territory its armies occupied. The fact of conquest
in the sense of effective occupation was sufficient, without the need to wait for a peace treaty.
If the occupying power wanted to bring about an immediate change of sovereignty, the
administrative occupation was sufficient to subject the inhabitants and authorities of the occupied
area to the new sovereign and, thereafter, to draw all sovereign power in the occupied area from
him.Inhabitants of occupied areas forthwith were treated as subjects.
PROVISIONAL OCCUPATION: XVIII century situation

But when European wars became tied to a political and social revolution, at least for a few years it
became clear what it could mean if a military occupation engendered an immediate change of
sovereignty that did not remain within the framework of a comprehensive, homogeneous spatial
order. Military occupation thus effected a constitutional change in the fullest political, economic,
and social sense, but, of course, after the victory of the legitimate restoration of 1815, this
procedure was considered to be inimical to international law.
The legitimate restoration succeeded in restoring some privileges, but was unable to check the
comprehensive victory of the bourgeois-liberal constitution in Europe.
Basic respect for private property remained; it expressed the principles of constitutionalism and
therewith basic respect for the new type of constitution. When war becomes a struggle between
purely state entities, then everything that is non-state - in particular, the economy, trade, and the
whole sphere of civil society - is left undisturbed. Military occupation then need not disturb the
constitution, i.e. the principles of the bourgeois constitutional system. The occupying power need
not change the economic and social structure of the occupied area.
Contemporary jurists of individual German states had developed further and concretely the idea of
state sovereignty, and had distinguished the state as such from the holders of state power at any
given time.
With changing power holders, the continuity of this state as such, of the state as a juridical person,
had been refined and defined sharply. The state had become independent with respect to the
question of whether the given state authority was legitimate or illegitimate.
Now, the independent legal subject “state” - distinguished both externally and internally by a
defined territory, by subjects, and by organized rule - entered upon the scene with all juridical
clarity, and as distinctly independent from the given legitimate or illegitimate, legal or illegal holder
of state power.
The idea of the identity and continuity of the state was stronger than was any legitimacy and even
any legality.
The change of government and regime did not signal any change of state sovereignty - it was not a
case of state succession. However, by contrast, a mere military occupation still was not a change of
government.

CHANGE OF SOVEREIGNTY AND CHANGE OF REGIME

Thus, military occupation, occupatio bellica, arose as a conceptual antithesis both to a change of
sovereignty and a change of regime. It was no longer a land-appropriation, and it affected no
territorial change. It was merely a provisional and factual occupation of soil, which determined what
transpired thereon, such as an equally provisional and factual subjugation of the respective
population, and the administration of their affairs and their system of justice.
It proceeded under the provision of jus postliminii, i.e. the actual restoration of former conditions,
and it upheld this reservation against making any real changes in the law. Thus, military occupation
no more abrogated the identity and continuity of the state to which the occupied area belonged,
than it liquidated the state sovereignty over the area in question. In no sense was it similar to a
regime change, let alone to a constitution. With the aid of such distinctions, during the 19th century
occupatio bellica – effective military occupation - became an increasingly sharper and more defined
legal institution in international law, which, for the occupied area, meant neither a territorial, nor a
constitutional, nor even a regime change, but rather a legal institution distinct from all three of these
changes in status change.
Despite this difficulty of legal construction, it cannot be denied that after 1815 occupatio bellica
developed into a recognized principle of international law.
The foundation of occupatio bellica was the sharp distinction between a change of sovereignty, i.e. a
territorial change, and the provisional change of a military occupation.
The real objective was to establish a direct relation between the occupying power's military
commandant and the population of the occupied territory.
There was no juridical answer to any of the important practical questions consistent with the real
circumstances.
The positivistic jurisprudence of continental constitutional law was helpless with respect to the
problem of a “state of exception”. That is consistent with the nature of the positivistic method,
which, due to its dependence on state legal statutes, refuses to consider the difficult questions of
both international law and constitutional law. In most cases, it simply shuns them and declares
them to be not juridical, but political.

THE LEGAL-POLITICAL IDEAS OF THE XIX CENTURY

As a result of this raising of the concept of occupatio bellica to a legal institution of international law,
five diverse trains of thought coalesced and substantiated the partly formal-juridical and partly
historical-political ideas of the 19th century:
1. The concept of justus hostis
2. The concept of continental land war as purely a war of combatants, as essentially a struggle
between mutually state-organized armies
3. Effects of the old principle of legitimacy, which was recognized at the Congress of Vienna
4. Effects of the new principle of legitimacy, of the democratic self-determination of peoples
5. The 19th century European constitutional standard raised the distinction of private and public law
to a normal status of internal state life
The effect of liberal constitutionalism was that an occupatio bellica excluded any idea of a change of
sovereignty either in deed or in word. A constitutional system of government was presupposed by
both states, the occupier and the occupied.
We now conclude our investigation of occupatio bellica with yet another word about the remarkable
and essential relation between “enemy occupation” and state of siege or “state of exception” within
a constitutional state. In both cases, a situation that demands extraordinary measures and, thus,
breaches the constitution should obtain, yet with the goal of maintaining the validity of this same
constitution. Also, in both cases, the attempt is made to answer the difficult question by
emphasizing the merely provisional character of this situation and its measures.
Naturally, where the common constitutional standard of European constitutionalism was lacking, the
legal institution of ‘occupatio bellica’ was ineffective in practice.

ELEMENTS OF THE LEGAL ORDER UNRELATED TO THE STATE

The interstate international law of the Jus Publicum Europaeum is but one of many legal-historical
possibilities of international law. In its essential reality it also contained strong non-state elements.
Interstate in no sense means the isolation of any subject in the international law of this type of
order.
The classic form of the state in European international law contained a dualism within itself, namely
between public and private law. Neither of these dualisms can be isolated.
Moreover, English common law rejects both the dualism of public and private law and the concept
of “state” that defines continental Europe. The sharper the public sphere became, the more the
dualism of internal and external closed the door. This made it even more important for the private
sphere to keep the door open, in order to ensure the universality of the private sphere, in particular
the economic sphere. Unfortunately, the word “state” has become a general concept lacking any
distinction, a misuse that has caused general confusion.
In particular, spatial concepts specific to the epoch of the state from the 16th to the 20th century are
applied to other orders of international law. Thus, it is necessary to remember that interstate
international law is limited to historical forms of political unity.
International law, jus gentium in the sense of jus inter gentes, is dependent, of course, on the
organizational forms of this peoples and can mean:
1. inter-populist law
2. inter-urban law
3. inter-state law
4. law valid between spiritual authorities and secular powers
5. inter-imperial law, jus inter imperia
Together with jus gentium in the sense of a jus inter gentes (as distinguished from the structural
forms of various peoples), there can be general common law extending beyond the borders of the
self-contained gentes (peoples, states, empires). Thus, in the 19th century, together with an
essentially interstate law respecting the distinction between internal and external, there arose in
European international law a common economic law, an international private law.
Its common constitutional standard (the “constitutional constitution”) was more important than was
the political sovereignty of the individual (political, but not economic), self-contained, and territorial
continental states.
In the 19th century, this international law of free trade and free economy became synonymous with
the British Empire's interpretation of freedom of the sea.

LECTURE 12 - THE JUS PUBLICUM EUROPAEUM

THE LAST EUROPEAN LAND-APPROPRIATION

The years from 1870 to 1890 were for Europe a time of great optimism. The growing belief in
European civilization and progress was expressed in many plans for a pan-European organization, a
European confederation of states, and even a federal state. But this did not happen.
What happened was the last common land-appropriation of non-European soil by the European
powers; the last great act of a common European international law occurred during these years of
the last bloom of the Jus Publicum Europaeum. It concerned African soil.

ACQUISITION OF COLONIAL LANDS

In addition to discoveries and scientific explorations, this race for colonies also was concerned with
more or less symbolic appropriations, and with treaties concluded with indigenous tribes and their
chieftains.
There always have been treaties with non-state sovereign entities; they are typical of that part of
international law that is not specifically interstate international law.
By contrast, for a purely interstate international law, for European international law at that time, of
course there were no legal titles. But here, at least according to a very influential English opinion,
these treaties had great practical value as a preparatory or contributory method for the recognized
legal title of effective occupation. They were intended to give the discoverer and first explorer a
reasonable time, a priority, to effectively occupy the appropriated land.
Old forms of colonial acquisition by private colonial societies, such as had flourished in the 17th
century and appear to have been superseded eventually by state development, experienced a
surprising revival for a few decades.
Numerous new colonial societies developed in all the great European powers. Simultaneously, as
members of the family of European nations, European colonial powers - England, France, Germany,
Italy, and Portugal - concluded among themselves numerous treaties concerning the division of
spheres of influence and interest.
The interstate treaties were agreements on mutual recognition of rights to land-appropriations, in
particular delimiting zones of land-appropriation among the European partners directly concerned.
The culmination of this race for legal rights, legal titles, and occupation was a great international
land-appropriation congress - the Congo Conference in Berlin (1884-85).
The civilizing worldview of these years of rapid expansion was a late relic from another time, when
Europe still was the sacral center of the earth. But it already had become a caricature of a debased
secularization.

THE RELATIVIZATION OF EUROPE

Yet, the conference no longer was purely European. The United States participated in a thoroughly
effective manner. It gained a kind of foothold in the Republic of Liberia, which had been recognized
since 1848. Moreover, the United States assumed a decisive position when, on April 22, 1884, it
recognized the flag of the International Congo Society, which was not a state.
When “neutralization” of the Congo Basin became a practical issue, the United States rejected any
participation. Thus, at the Congo Conference, the United States demonstrated a mixture of absence
in principle and presence in practice - a remarkable contradiction which, after World War I, would
become even more pronounced in Europe.
At that time, the relativization of Europe from the West (America) had not been matched by an
equally recognizable challenge from the East.
This Congo Conference formulated the rules of a European land appropriation of African soil in line
with the prudent standard of the sovereignty of any state. Stipulated in Art. 34 of the Congo Act was
the requirement of a “notification”. The notification requirement in Art. 34 established that the
other powers could make valid reclamations, if they had objections. Then, in Art. 35 followed a
formulation of the requisite of “occupation” that was in accord with the historical and spiritual
situation at the time. It recognized certain obligations that should accompany an occupation. It says:
“The Signatory Powers of the present Act recognize the obligation to insure the establishment of
authority in the regions occupied by them on the coasts of the African Continent sufficient to protect
existing rights, and, the case arising, freedom of trade and of transit on the conditions that may have
been agreed upon”. There was still no thought of effective occupation in the sense that, in view of
supremacy, African soil should be equal to European state territory, even if conditions at that time
did not yet allow for such equality.

THE SEARCH FOR AN AMITY LINE

With this procedure, the Congo Act attempted to bind international freedom with neutralization of
the Congo Basin. Thus, neutralization was meant both to guarantee free trade and to prevent
Europeans from engaging in war with each other on the soil of Central Africa with the Africans'
consent and complicity. But, whereas the amity lines of the 16th and 17th centuries had turned non-
European space into a theater of ruthless struggle among Europeans, the amity line of the Congo Act
sought to limit a European war to European soil and to keep colonial space free of the vexations of a
struggle among Europeans.
First of all, the Congo Act contained in Art. 10 a “Declaration Relative to the Neutrality of the
Territories Comprised in the Conventional Basin of the Congo”.
A few years later, the content and wording of this declaration must have made the dominant
juridical interpretation unintelligible.
After 1890, the onset of a jurisprudence of purely positivistic, i.e. purely intrastate laws and
interstate contractual norms, turned the concrete order of a truly European international law into a
collection of somehow valid norms. Thereby, European international law lost any sense of the spatial
structure of a concrete order and of the essential and specific distinctions in soil statuses in
international law. Legally speaking, European international law continued to recognize only state
territory and state-free land, thereby eliminating the spatial sense of colonies.

NEUTRALITY OF THE COLONIES

Similar or dissimilar soil statuses became a practical matter for the Belgian part of the Congo Basin
after the International Congo Colony, recognized as an independent state in 1885, was appropriated
by Belgium, a consistently neutral European state, and became a Belgian colony.
After years of deliberation and discussion, the appropriation occurred in 1907.
The soil status of Belgium, guaranteed by the European Great Powers since 1839, was determined by
neutralization, and this appeared, according to the abstract wording of Art. 10, also to hold for the
neutralization of the Belgian Congo colony.
The fundamental question was raised as to whether a consistently neutral European state should be
allowed to acquire possessions and colonies outside Europe. But in principle, the question was
meaningless if, in a situation lacking any distinctions or spatial consciousness, all land dominated by
a state was considered to be “state territory”.
According to the Belgian interpretation, the soil status of the Belgian Congo colony was determined
by the Congo Act alone, i.e. the neutrality of this African soil only was “optional” and different from
the neutrality of Belgium: it was not guaranteed by the Great Powers.
So, with the onset of the 20th century, Belgian jurists changed their constructions of international
law and became committed to "effective occupation" as the only legal title for land acquisition.

COLLAPSE OF THE EUROPEAN SPATIAL ORDER

This statement makes clear what the claim to the legal title of “effective occupation” really meant:
the rejection of the legal title of “recognition”, grounded in the community and solidarity of
international law, and the shattering of the comprehensive spatial order that such a legal title
embraced.
By claiming “effective occupation” in order to acquire the Congo area as a colony, Belgium, a small
European state that owed its existence and its protected status to recognition accorded by the Great
Powers, opted out of the spatial order of European international law.
Now, the Belgian state was considered to be the legal successor of the Congo Free State, through
effective occupation rather than through recognition in international law. However, no less
symptomatic for the ensuing collapse of the old European spatial order after 1890 was the fact that
the European guarantor powers individually had consented to this procedure, instead of collectively
and fundamentally answering the question as they had sought to do at the Congo Conference.
European powers and jurists of European international law not only had ceased to be conscious of
the spatial presuppositions of their own international law, but had lost any political instinct, any
common power to maintain their own spatial structure and the bracketing of war.
In case of a war, i.e. only after the outbreak of war, the non-belligerents only were obligated to offer
good offices or to attempt to get the belligerents to agree to the neutralization of the zone in Central
Africa. Nevertheless, the belligerents would not directly be required to respect the neutrality of
colonial soil. This sounds very confused, complicated, and indirect.
We must bear in mind that the binding power of an obligation of sovereign states in international
law cannot depend on the problematic acquiescence of otherwise free sovereigns, but rather must
be determined by common membership in a defined space, i.e., must be based on the
comprehensive effect of a spatial order.
After 1890, the dissolution proceeded rapidly and unmistakably. In 1885, European international law
at least still was capable of a gesture of solidarity with respect to the soil of Central Africa.
But European unity no longer could be maintained when it came to the immediately following
question of European land-appropriations of the soil of North Africa - in Egypt, Morocco, Liberia, and
Abyssinia. The world-political development of the Congo Conference until World War I had
demonstrated that the European belief in civilization and progress no longer could be used to form
institutions of international law.
Ultimately, occupation became only a naked tactic, and that meant “effective occupation” was now
the only recognized legal title for a land-appropriation.

LECTURE 13 - FROM EUROPEAN TO INTERNATIONAL LAW

The dissolution into general universality simultaneously spelled the destruction of the traditional
global order of the earth. It was replaced by an empty normativism of allegedly recognized rules.
It is characteristic of the period of international law to which we now turn, dating from 1890 to
1939.
The first long shadow that fell upon the Jus Publicum Europaeum came from the West.
The first characteristic indications became visible with the growing power of the United States,
which could not decide between isolation behind a line separating itself from Europe and a global,
universalist-humanitarian intervention.
Considering the European-American relation as a whole, expansion into the American sphere was
manifested differently. European and American international law were expressly mentioned
together, a deeply perceived differentiation of the spatial order or a true spatial problem was not
intended, at least not initially. Both Europe and America were united regarding a common concept
of a unified European civilization.
Only in 1910 did a pioneering book by Alejandro Alvarez appear that opposed the universalistic
international law and outlined the characteristics of an American international law. Yet, the
universalistic habits of thought were too strong.
The expansion and distention of international law from a specifically European order to the
spacelessness of a general universalism was evident in the fact that, toward the end of the 19th
century, European authors also ceased to write textbooks on European international law and began
customarily to speak only of International law.
Jurists no longer observed the great distinction between jus inter gentes and jus gentium, which
presupposed the linguistic distinction between droit des gens and International law.
It had been supplanted by a strong emphasis on the purely interstate character of international law.
The core of the new problem lay in the fact that, instead of a generalized international law lacking
any spatial concept, several different spheres of international law appeared on the scene, at the
same time that the great problem of a new spatial order of the earth from the West - from America -
became evident. Thus, the problem of the transformation of the spatial order of European
consciousness at first remained occluded. Later, however, the question no longer appeared to exist.
An Asiatic “Great Power” had arisen and was recognized as such. By comparison with the Second
Hague Convention of 1907, the atmosphere, the ambiance of the First Hague Peace Convention of
1899 still was purely European.
At the Second Hague Convention, given the number and role of American and Asiatic participants, it
was clear that in less than ten years a great step had been taken from a Jus Publicum Europaeum to
an international law no longer European in the former sense.

THE SITUATION OF INTERNATIONAL LAW IN 1890

Since we are focusing on 1890 in this history of international law, I would like to draw attention to
one important fact. Without being aware of it, toward the end of the 19th century European
international law had lost consciousness of the spatial structure of its former order.
Instead, it had adopted an increasingly more superficial notion of a universalizing process that it
naively saw as a victory of European international law. It mistook the removal of Europe from the
center of the earth in international law for Europe's rise to the center.
Jurists believed that Europe was being complimented by the reception of non-Europeans, and did
not notice that, in fact, they were loosening all the foundations of a reception, because the former
order - good or bad, but in any case conceived of as a concrete order, above all as a spatial order, by
a true community of European princely houses, states, and nations - had disappeared.
What appeared in its place was not a “system” of states, but a collection of states randomly joined
together by factual relations - a disorganized mass of more than 50 heterogeneous states, lacking
any spatial or spiritual consciousness of what they once had had in common, a chaos of reputedly
equal and equally sovereign states and their dispersed possessions, in which a common bracketing
of war no longer was feasible, and for which not even the concept of “civilization” could provide any
concrete homogeneity.
DISORIENTATION OF JURIDICAL THINKING
During this dissolution, the remnant of the recognition of states and governments in international
law had to lose not only its substantive significance, but also any reference to a homogeneity among
the recognizing and the recognized states.
This was so because the distinction between civilized, half-civilized (barbaric), and wild peoples
(savages), so significant for traditional European international law, had become juridically
insignificant, as had the fact of continental spatial relations and the distinction between the soil
status of the European motherland and that of overseas colonies.
Contemporary jurists did not recognize the new global problem, whereas, around 1900, German
political economists bad-formulated the question with great clarity: universalism or pluralism of the
world economy?
Juridically, there now appeared to be only one, although no longer decisive international community
of international law. The prevailing concept of a global universalism lacking any spatial sense
certainly expressed a reality in the economy distinct from the state - an economy of free world trade
and a free world market, with the free movement of money, capital, and labor.
Liberal economic thinking and global commercialism had become hallmarks of European thinking.
A strong guarantee for such a worldview lays in the dominant position of England and in the English
interest in global free trade and freedom of the sea.
In short: over, under, and beside the state-political borders of what appeared to be a purely political
international law between states spread a free, i.e. non-state sphere of economy permeating
everything: a global economy. In the idea of a free global economy lays not only the overcoming of
state-political borders, but also, as an essential precondition, a standard for the internal
constitutions of individual member states of this order of international law.
It presupposed that every member state would establish a minimum of constitutional order. This
minimum standard consisted of the freedom - the separation - of the state-public sphere from the
private sphere, above all, from the non-state sphere of property, trade, and economy.
At this point, we must remember that a concrete order of international law mostly consists of
uniting and blending several diverse orders.
The interstate law of the 19th century consisted of joining free economy and free sea with interstate
sovereignty.

POLITICAL DIVISION / ECONOMIC UNITY

At that time, a sharp division between internal and external – between international law, i.e.
interstate law, and national law, i.e. intrastate law - became prominent and customary in juridical
thinking.
The reality of two orders of international law had been lost completely in jurisprudential
consciousness.
Since the middle of the 19th century, the science of so-called “International private law” had sought
to free itself completely from the concepts of international law. It appeared to go its own way and to
become a juridical speciality isolated from international law. In the final analysis, it did nothing more
than seek to become positivistic, and to place itself on a purely national legal foundation.
The state-centered legal positivism dominating the thinking of contemporary jurists no longer was
able to supply the conceptual tools to form institutions capable of illuminating the reality of such a
confusion of intrastate sovereignty and supra-state free economy. The rational relation of norm and
exception thereby was reversed.
Just what deep changes had occurred in the second half of the 19th century were evident in the fact
that in a few decades the “domicile principle” that Savigny still took for granted had been displaced,
at first by the Italians in favor of the “principle of nationality” and “citizenship”. That change
manifested the rapid transition to freedom of movement and a new relation to the soil.
The general movement to freedom, a termination of traditional orientations and, in this sense, a
total mobility of the most intensive sort - a general disorientation - set the European world on a new
axis and hurled it into other currents of power in which state-centered legal positivism proved to be
completely helpless internally. Precisely here - in the economy - the old spatial order of the earth
lost its structure.

NO GLOBAL EQUILIBRIUM
That a family or community of European states and nations suddenly opened the doors of its house
to the whole world was no mere quantitative expansion and enlargement, but rather a transition to
a new plane. Already in 1823, declaration of the Monroe Doctrine had removed the sphere of the
Western Hemisphere from further European land-appropriations. Nevertheless, at one point
England claimed to be the center of the earth, to have ceased being the administrator of the former
European balance, and to have become the representative of a new global equilibrium.
But the island of England was unable to achieve its goal of global equilibrium. England became the
traditional power for certain areas of the Mediterranean and the passage to India.
Here, she played the role of a katechon. But the small European island apparently was still too weak
for this great, global exercise of power.
However, she was strong enough to usher in a new balance, which impeded sea powers, and
thereby allowed her alone to dominate the great expanses of the world's oceans. The concert of
European Great Powers ceased to exist in 1908.
What now was considered to be international law - “international law” as treated in jurisprudence -
was no longer a concrete spatial order.
From the standpoint of special technical materials, it was nothing more than a series of
generalizations of doubtful precedent, most based on transitory or heterogeneous situations,
combined with more or less generally recognized norms, which, the more generally and more
spiritedly they were “recognized”, the more contested was their application in a concretely disputed
case. These generally recognized norms floated over an impenetrable net of contractual agreements
with fundamental provisions of various sorts.
The provisions turned the beautifully worded agreements into a mere facade.
The maxim pacta sunt servanda waved like a juridical flag over a completely nihilistic inflation of
numberless, contradictory pacts emptied of any content by stated or unstated provisions.
All true problems – all political, economic, and spatial questions - were treated as unjuridical, i.e.
they were excluded from the scholarly consciousness of jurists.
Later, at the end of the 19th century, jurisprudence, in the name of legal positivism, chose to remain
silent with respect to all the great contemporaneous legal issues.

LECTURE 14 - THE LEAGUE OF NATIONS

The Paris Peace Conference in the winter of 1918-19 was supposed to end a world war and to bring
about world peace. Different from the peace conferences of European international law (1648, 1713,
1814-15, 1856, 1878, and 1885), it was not a European conference. States from around the world
participated, and the leading powers, the allied and associated major powers - Great Britain, France,
Italy, Japan, and the United States - unlike the leading Great Powers of European international law,
no longer were bound together by a common spatial order.
The non-European areas of the earth were mentioned only occasionally at the conferences in Paris
in 1918-19. Except for the peace, nothing was said about the order outside Europe.
There also was no treatment of the problem of freedom of the sea, of the spatial order of the earth
beyond firm land, as if nothing essentially had changed in the spatial order of the earth since the
Treaty of Utrecht (1713) and the Congress of Vienna (1814-15).
New borders were drawn in Central and Eastern Europe; the colonial possessions of Imperial
Germany were put under mandate; important Turkish possessions in Asia were assigned new
sovereigns. In other words, this world conference in no sense created a new world order.
The re-division of European soil, imposed on the European continent by a world conference, was to
be safeguarded by a League of Nations. The League of Nations had its headquarters in Geneva, an
orientation no doubt chosen by the American President, Woodrow Wilson. States from all parts of
the world belonged to the League, among them 18 from the Western Hemisphere, which made up
one-third of the members.

THE CASE OF ETHIOPIA

The political significance of such a combination was a certain means of control and management
that two leading European Great Powers, England and France, exercised over smaller and medium-
size European states. This permitted the possibility of common action among the leading powers,
which, on propitious occasions, amounted to an alliance.
The League refused to address not only the most prominent problem of disarmament, but also the
task of a bracketing of war in general.
The first and only great test case - the application of economic sanctions in 1935-36 - was not
directed against Germany, as France had expected, but against Italy. With these sanctions, all
questions of military law remained unanswered. The result was that the state that had been
attacked, Ethiopia, a League member, was defeated, subjugated, and annexed by the aggressor,
Italy, also a League member. On July 4, 1936, the sanctions were lifted by a League resolution.
Several League members recognized the annexation in all forms.
The Council reached no formal conclusion, but the League president asserted that the great majority
of members had left the decision about recognizing the annexation to the League’s individual
members. Yet, Ethiopia remained in the League. Nevertheless, all the many internal impossibilities of
a contradictory structure of this kind had their roots in international legal disorder, which is
unavoidable when the structure of a spatial order becomes unclear and the concept of war is
destroyed. Instead of bracketing war, a net of intentionally vague, formal compromises and
cautiously worded stylized norms was assembled, and, in turn, was subjected to an ostensibly purely
juridical interpretation.
The League of Nations from 1919 to 1939 was a typical example of the fact that no comprehensive
order of international law can be founded without a clear concept of a spatial nomos. No system of
norms so laboriously conceived and interpreted can replace this need. Given their concept of
jurisprudence, which was called positivism, in general jurists could be only auxiliary agents of
secondary importance.
The essential cause of the failure of the League was that it lacked any decision with respect to, or
even any idea of a spatial order. It wanted to be simultaneously a European order and a universal
and global order.

LACK OF ANY SPATIAL ORDER

The development of the planet finally had reached a clear dilemma between universalism and
pluralism, monopoly and polypoly. The question was whether the planet was mature enough for a
global monopoly of a single power or whether a pluralism of coexisting “great spaces”, spheres of
interest, and cultural spheres would determine the new international law of the earth. Political
economists had discussed the question since the turn of the century. The dominant idea in Geneva
was the ideological call for an uncritical universalism of public opinion, which determined the
structure of the League when it began and which ultimately destroyed it. Universalism remained the
Geneva dogma and the Geneva creed.
Given this lack of decision with respect to the basic question of spatial order, the League was unable
to develop an internally consistent and unifying principle of the territorial status quo. Juridically
speaking, it did not once presuppose a clear interdictum uti possidetis (prohibition of change of
possession), i.e. in principle it did not adopt a provisional guarantee of property.
The essential difficulty lay still deeper and concerned the question of what the status quo should be.
The League of Nations was unable to be a universal world order, because both modern spatial
powers - the Soviet Union and the United States - were absent. The first fundamental contradiction
in the League' s formal concept of space lay in the fact that the two leading European powers -
England and France - had completely different concepts of the status quo of Europe and of the
world.
The status quo that England envisioned was an empire upon which the sun never set. It presupposed
English domination of the world's oceans - the freedom of the sea, as interpreted by the English -
and, above all, security of the seaways crucial to such a maritime global empire.
By sharp contrast, France's concept of the status quo was directed precisely at the stipulation of
continental-European territorial divisions and at the territorial borders established in 1919. In
comparison with the worldwide, essentially maritime orientation of the other leading power,
France's horizon was spatially narrow. It was not elastic with respect to territorial aspirations in
Europe. Basically, it had a different spatial structure.

NO BRACKETING OF WAR

The ambiguous and internally irreconcilable nature of this peculiar League's basic concept of space
was evident also in its concept of war.

On the one hand, the League remained committed to the interstate, military war of traditional
European international law; on the other, it sought, by means of economic and financial pressures,
to introduce new means of compulsion and sanction, whereby the non-discriminatory war of
interstate international law, and with it the former right of neutrality, would be destroyed.
At this point, two facts should be remembered: first, international law sought to prevent wars of
annihilation, i.e. to the extent that war is inevitable, to bracket it; and second, any abolition of war
without true bracketing resulted only in new, perhaps even worse types of war, such as reversions to
civil war and other types of wars of annihilation. In Geneva, however, there was much talk about the
proscription and abolition of war, but none about a spatial bracketing of war.
All efforts to bring about a reliable pact for general and mutual assistance, for “assistance mutuelle”,
were ineffectual. In like manner, the vigorous attempt to make aggression a crime in international
law, to make it a crime international, came to naught.
These considerations serve our purpose to demonstrate a few practical results of the lack of a spatial
order with respect to three questions essential to the League of Nations: the problem of territorial
changes, the question of the continuation or non-continuation of permanent neutralizations, and the
relation of Europe to the global line of the Western Hemisphere.
These are the consequences for international law of a type of normative thinking lacking any
concept of order or space.

PEACEFUL CHANGE / NEUTRALIZATIONS

1. Owing to the lack of a new spatial order, the inescapable viewpoint of the contemporary property
situation, of the territorial status quo, did not even contain a legal principle. One was compelled to
abide by the mere fact of the given status quo. This led to endless internal discussions of the method
of territorial changes, but never to a decision.

Thus, territorial changes proceeded under the rubric of “peaceful change”. But economic
fluctuations and transfers of gold or of industries and manpower are far more interesting than are
transfers of territory.

2. This incompleteness, which can be explained by the same lack of a spatial order, brought to the
fore the question of permanent neutralizations of individual European states. Such neutralizations,
which excluded certain areas from becoming possible theaters of war, are characteristic means of
bracketing war within a spatial order of international law.

Therefore, as long as they do not sink to the level of meaningless fossils, they are a significant
expression of the total structure of this international law, which is their guarantee. The Paris Peace
Conference of 1918-19 expressly confirmed the agreements of 1815 and permanent Swiss neutrality
(in Art. 435 of the Versailles Treaty).
The League of Nations law to prevent war claimed to distinguish between the qualifications for
allowing or disallowing war and the justice or injustice of war among warring states in international
law. The concept of neutrality of traditional interstate international law, based on the complete
aequalitas of both sides as justi hostes, was negated thereby.
Nevertheless, permanently neutralized Switzerland was allowed to remain a full League member and
even was allowed, as was every other member, to participate in decisive considerations and
resolutions aimed at disqualifying and discriminating against other League members.
More in line with ideology, it was said that Switzerland's permanent neutrality was incompatible
with the League's universal system of war prevention. To solve this contradiction, it was decided that
Switzerland would not participate in military, but only in economic sanctions (Art. 16 of the League
Covenant).
To the same degree that the political powerlessness of the League, i.e. its inability to create a new
spatial order and therewith a bracketing of war, became apparent, a remarkable and isolated
attempt to restore the traditional neutrality of Switzerland succeeded.
THE LEAGUE OF NATIONS AND THE WESTERN HEMISPHERE

In reality, the problem of the relation between the League and Europe was the problem of the
relation between the League and the Western Hemisphere.
The United States, in all forms and apparently in an especially decisive way, remained absent from
Geneva. But as regards other European questions, it was present in Geneva in an immediate and,
thus, no less effective and intense way. This resulted in a peculiar mixture of official absence and
effective presence, which characterized the relation of the United States to the League and to
Europe.
Numerous Western Hemisphere states were League members. For various reasons and in many
respects, these states were considered to be “sovereign”. But they were dependent on, and their
foreign policies were controlled by the United States.
The territorial status of the controlled state is not changed if its territory is transformed by the
controlling state. However, the controlled state's territory is absorbed into the spatial sphere of the
controlling state and its special interests, i.e. into its spatial sovereignty. The external, emptied space
of the controlled state's territorial sovereignty remains inviolate, but the material content of this
sovereignty is changed by the guarantees of the controlling power's economic “great space”.
The controlling state had the right to protect independence or private property, the maintenance of
order and security, and the preservation of the legitimacy or legality of a government.
Simultaneously, on other grounds, it was free, at its own discretion, to interfere in the affairs of the
controlled state.
This was obvious in all the characteristic details of the new methods of domination and control.
Territorial sovereignty was transformed into an empty space for socio-economic processes.
The above-mentioned [Caribbean and Central] American states belonged to the spatial order of the
Western Hemisphere presupposed in the Monroe Doctrine and, according to the system of treaties
binding them in international law, also to the United States’ sphere of spatial sovereignty.

THE LEAGUE OF NATIONS AND THE MONROE DOCTRINE

Thus, Europe was overshadowed by the Western Hemisphere. But the League had subjugated itself
from the outset. It had retreated before the Monroe Doctrine in Art. 21 of the League Charter, which
states that the Monroe Doctrine, as an “entente regionale” assuring the maintenance of peace, is
“not incompatible” with the League Charter.
Such questions called attention to Wilson's difficult situation. He vacillated between the traditional
[American] doctrine of isolation of the Western Hemisphere and his own goal of a universal League
of World Peace.
The reason was that in Paris, owing to misunderstood assurances about the Monroe Doctrine, he
had been forced to insist upon explicit recognition of the Monroe Doctrine in the League Charter.
Without such recognition, as said before, the United States would not join the League. Thereby, this
provision constituted a symbol of the Western Hemisphere’s triumph over Europe. Nevertheless, the
United States Senate refused to ratify both the Versailles Peace Treaty and the League Covenant,
and the United States did not join the League of Nations. In this way, the participants in Geneva
abandoned the idea of a reciprocity of continents or hemispheres. They withdrew from the Western
Hemisphere without clarifying which spatial principle the League would build upon. The League
abandoned any serious attempt to solve the most important problem, namely the relation between
Europe and the Western Hemisphere.
The League thus lacked jurisdiction or authority to deal with relations between Western Hemisphere
states or even between a European state and one in the American spatial sphere.
Consequently, while the League was absent in America, eighteen Western Hemisphere states were
present in Geneva. The leading Western Hemisphere power, the United States, was not present
officially. But, since the Monroe Doctrine had been recognized and other Western Hemisphere
states were present, in reality it was impossible for the United States to be absent completely.

SEPARATION OF POLITICS AND ECONOMICS

Such a mixture of official absence and effective presence caused jurists, who only concern
themselves with official matters, to disregard a great problem. The key to understanding this mixture
lies in the separation of politics and economics that the United States claimed and that Europe
acknowledged.
Internally, that meant the domination of an economy free of the state and, in the same sense, of a
free society over the state.
Externally, it constituted an indirect method of exerting political influence. The most important
characteristic of this influence was that it was based on free trade, i.e. on trade free of the state, on
an equally free market as the constitutional standard of international law, and on ignoring political
territorial borders by utilizing such devices as the “open door” and “most favored nation”.
Until today, the separation of politics and economics is considered by many French, English, and
American theoreticians to be the last word in human progress, and to be the criterion of the modern
state and civilization. But, in reality, given the primacy of the economic motive, it only intensified the
disorder occasioned by the unsolved problem of the spatial order of the earth.
It became clear that the significance that the maxim “cujus regio, ejus religio” had had for
international law in the 16th and 17th centuries had become “cujus regia, ejus economia”, but
obviously with new proportions and dimensions that “regia” had assumed in the industrial-technical
age.
Given the European situation, it was taken for granted that the important postwar economic
questions - reparations and inter-allied debts - could not be regulated without the United States.
Given the significance of the Monroe Doctrine and the United States' strong tendency to isolation, it
was obvious that, in principle, the United States sought to avoid any interference in European
political affairs. As said before, that appeared to be consistent with the old maxim: “as much trade
as possible, as little politics as possible”.
Therefore, its characteristic joining of absence and presence developed from the various methods of
both its economic and political participation and influence.
While its economic presence did not need to be any more effective or intensive than necessary, its
political absence was unable to hinder the political repercussions of its economic presence.

THE SPATIAL CHAOS OF THE LEAGUE OF NATIONS

From the standpoint of spatial order, the question posed regarding the relation between the League
of Nations and Europe now can be answered to an extent, if we again focus on the territorial
problem.
Jurists considered territorial questions to be eo ipso political and, thus, not juridical. But this was
true not only of jurists; economists considered these questions to be non-economic and the experts
in commerce considered them to be non-commercial.
Consequently, without further ado, the United States was able to exclude these questions from its
official view. Nevertheless, these questions were not some “reserved property”, i.e. some matters
that could be dismissed as purely internal to Europe. And this impeded the League of Nations, which
was not a European, but a universal organization.
The results of this spatial chaos were obvious. The general problem of a spatial order of Europe was
perceived and discussed. France, the then leading power of the European continent, was bogged
down in its own security concerns with the status quo of territorial borders set in 1919. England
remained of Europe, but not in Europe. The League, as we have seen, was not in a position to create
a spatial order. The United States put a high value on remaining politically absent and held officially
to the isolation line of the Western Hemisphere.
On the one hand, this line created no new nomos of the earth, but on the other, this line no longer
abided by the old nomos of European international law. The United States believed it
could turn the political into an external facade of territorial borders, that it could transcend
territorial borders with the essential content of the economic. But, in a decisive moment, it was
unable to prevent the political grouping of friend and enemy from becoming critical.

LECTURE 15 - TRANSFORMATION OF THE MEANING OF “WAR”

The First World War began in August 1914 as a European state war in the old style. The warring
powers mutually considered themselves to be equally legitimate and sovereign states.
They were recognized as such in international law and were justi hostes in the sense of the Jus
Publicum Europaeum.
Aggression was not yet a juridical concept of traditional European international law.
In the interest of belligerents and neutrals, and in order to avoid the intermediate situation of what
today is called “cold war”, international law clearly distinguished between two distinct statuses.
But soon after the war began, the first signs of a transformation of war became evident.
From the Belgian side, a distinction between just and unjust war was made with reference to
violation of Belgium' s neutrality, and with the goal of condemning Germany, which militarily had
occupied the greater part of Belgian soil for four long years, and of denying the position of such an
occupying power in international law.
Above all, however, the peace treaties that ended World War I contained a series of features that
pointed to a transformation-> treaty of Versailles

THE VERSAILLES TREATY (1919)

Two Versailles Treaty articles contained significant signs of a new concept of war, in that they
deviated from traditional European international law: Art. 227, which indicted the former Kaiser,
Wilhelm II; and Art. 231 , the so-called “war guilt article”.
In their positive contractual regulations, both articles referred only to World War I.
In international law, however, they must be considered to be a symptom of, if not a precedent for a
conceptual change.
Art. 228 described what where war crimes in the old sense, but art. 227 described the war itself as a
crime, not a violation of the rule of crime but a crime itself.
Historically speaking, Art. 228 should be considered together with Art. 227, although the former
deals exclusively with war crimes in the old sense, whereas the latter already contains a new type of
war that is considered to be a crime.

WAR CRIMES IN THE OLD SENSE (Art. 228 of the Versailles Treaty)

War between states that mutually recognize each other as sovereign and that practice jus belli with
respect to each other cannot be a crime, at least not in the criminal sense of the word.
In classical European international law, “war crimes” specifically refers to crimes committed during
hostilities, primarily by members of the forces of a belligerent state. It presumes that law is
permitted and rules must be provided, if someone violates rules in that moment a crime arise.
War crimes are offences against law in war, of jus in bello. These norms presuppose that war is
permitted, and that both sides are equally just. When one spoke of war crimes before 1914, only this
type of offenses was meant. Such war crimes were recognized and discussed in criminal trials, in the
military instructions of belligerent states, and in the literature of international law.
Articles 228-230 of the Versailles Treaty are concerned with this type of war crimes, i.e., crimes in
the sense of violations of jus in bello. However, at least in one important respect these peace
treaties contained an innovation in terms of the international law that governed before 1914,
namely that the vanquished state was obligated to turn over to the enemy state its own citizens who
committed war crimes.
This constituted a serious and fundamental change with respect to a basic legal institution: amnesty.
Until 1918, amnesty normally was an integral part of a peace treaty, be it explicitly stated or
implicitly assumed as an accepted practice of the peace process between two mutually recognized
partners. Now, amnesty was destroyed by a discrimination against the vanquished.

WILHELM II AS A WAR CRIMINAL

In the Versailles Treaty, Art. 227, directed against the former German Kaiser, Wilhelm II, is located
under the heading “Penalties” in Section VII. Here, the qualification of an action as a criminal offense
is expressed clearly in the heading, and a criminalization of the act is intended. Not only the five
leading powers, but also the combined associated and allied powers are listed as plaintiff and the
Kaiser was made the only defendant of this new type of international crime. This indictment of the
new crime of war was limited personally to the head of state.
As regards the facts of the case against the defendant, Art. 227 refers to the “supreme offense
against international morality and the sanctity of treaties”. In addition, however, Art. 227, section 3
says that the court should be guided by the highest motives of international policy, not international
law, because in public consciousness the traditional law did not recognize this new crime.
In 1919, it was not difficult for Art. 227 to be criticized and to be refuted according to both
traditional European international law and criminal law. European international law did not
recognize international jurisdiction of one state over another or of one sovereign over another.
Thus, a crime in international law was not a crime in the sense of “a state's criminal law”. War was
conceived of strictly as a relation between states, not between individuals or groups.
Art. 227 is not very specific about what this new crime entailed. The guidelines for a judge referred
to morality and politics, rather than exclusively to law. The punishment likewise was indefinite and
completely at a judge's discretion.
It was said that this stance in international law with respect to a criminalization of aggressive war in
Europe would have no lasting effect on the legal consciousness of European peoples and
governments. The whole matter of this attempt to bring Wilhelm II before an international court for
an international crime soon was forgotten by the European public. By 1920, England and France had
ceased to pursue the matter.
It was different with respect to public opinion in the United States. At the Paris Peace Conference
deliberations, American delegates put the greatest emphasis on the illegality of aggressive war.

AMERICAN POSITION

The confusion was all the greater since various legal viewpoints, such as the punishment of Wilhelm
II, the penalties for violations of the laws of war and the problem of reparations, gave occasion to
speak of war crimes in a general sense.
To begin with, of particular interest are remarks made in the Commission des responsabilites des
auteurs de Ia guerre, which also handled issues later codified in Art. 227, i.e. the punishment of
Wilhelm II, and in Art. 228, i.e. the punishment of war crimes in the old sense. With reference to the
latter, the American delegates, led by Robert Lansing, contrary to the English and French
representatives, said unequivocally that it was improper to equate punishment for crimes against
humanity with punishment for violations of the laws of war.
To the extent that the charges dealt with war crimes in the old sense, the American delegates
rejected the new concept of crimes against humanity. The American delegates have the very
legitimate feeling that the plan to create an international court of criminal justice is a consideration
of no value; there is no precedent for such and it is not consistent with the customs of nations.
These declarations refer not to Art. 227, but to Art. 228!
With respect to Art. 227, however, it was precisely the American delegates who demanded that
heads of state be punished and that aggressive war be designated a moral crime against humanity.
No doubt, in such declarations there is a conscious divergence from the concept of war in traditional
international law. The fundamental idea of war between states in European international law, the
doctrine of justus hostis, was abandoned. Yet, the talk was still not about a general criminalization of
aggressive war, but only about a moral crime against humanity, committed only by the heads of
state of the Central Powers and nobody else.
As is well-known, the United States did not ratify the Versailles Treaty, but concluded a separate
peace treaty with Germany, on August 25, 1921. Art. II of this treaty contains those same parts of
the Versailles Treaty enumerating those rights and benefits the United States insisted upon for itself,
i.e., Parts V, VI, VIII, IX, etc. But Part VII of the Versailles Treaty, containing Art. 227 and art. 228 on
war crimes, was excluded. It was not made an issue in relations between the United States and
Germany in international law.

THE “WAR GUILT ARTICLE” OF THE VERSAILLES TREATY

The “war guilt article”, Art. 231, was not placed under “Penalties”, but under “Reparations”. Thus, it
was posited more in economic than in criminal-legal terms. It dealt with the financial and economic
demands of the victors, which were not war indemnities in the old style, but rather claims for
damages, i.e. legal demands that could be derived from the legal responsibility of the vanquished.
For the most part, the French delegates based their arguments on civil law constructions. They
pointed, for example, to §823 of the German Civil Code, which allowed a claim for liabilities for an
illegal act. An Italian based his argument for Germany's liability for its citizens on §830 of the
German Civil Code, as liability for a societas sceleris (morally bad society). These are examples of the
numerous and varied constructions designed to prove that Germany's war was unjust and
aggressive. But one cannot say that the transformation of aggressive war into an international crime
in the criminal sense was intended.
The question is: had the transition from the political concept of war between states in European
international law to a discriminatory concept of war with one side just and the other unjust already
occurred?
If it were a question of Germany's guilt, and if this guilt were to be found in aggression, then,
generally speaking, it was completely conceivable that guilt in a criminal sense was meant and that
the facts of the case constituted a crime in the criminal sense. But, concretely, only reparations were
at issue: it was only a matter of Germany' s economic and financial obligations, not of real
punishment, as stated in Part VII of the Versailles Treaty. At Versailles, in no sense was anyone
predisposed to create a new crime in international law.
All European jurists understood the difference between the criminal guilt of certain individuals and
the legal obligations of a state, since the latter concerned only financial and economic matters. But
they also understood that the determination of a legally disallowed act with liabilities for damages
immediately would lead to a completely new type of “crime” in international law: a criminal offense.

CRIMINALIZATION OF AGGRESSIVE WAR IN THE 1924 GENEVA PROTOCOL

The two decades from 1919 to 1939 were spent searching for a new order of international law.
President Wilson had made the most important attempt at such a new order in 1919 at the Paris
Peace Conference. But the United States then withdrew from Europe and left the European peoples
to their political fate.
Every European statesman and every European citizen knew that the question of the abolition of
war was one of disarmament and security. Actually, the great attempt to criminalize war in
international law was embedded in a series of impenetrable antitheses that were difficult for the
common man to understand: the distinction between juridical and political ways of thinking; the
distinction between moral and legal obligation; the antithesis between political and economic
problems; and finally, the antithesis of private presence and official absence characteristic of
relations between the United States and Europe.
The 1919 League of Nations Covenant contained prescriptions for prevention of war (Arts. 10-17).
States would break the peace if they resorted to war without following certain procedures. Foreseen
as sanctions against such a breach of the peace were financial, economic, and military measures by
the other members (Art. 16). Nothing was said about a criminalization of war as such.
Between 1920 and 1924, many attempts were made to strengthen the League' s war prevention
system. But there was no agreement that war or any particular type of war should be a punishable
international crime for certain individuals. To a continental European jurist it was obvious that mere
utilization of the word crime in international law was not a criminalization in the sense of the
principle “nullum crimen, nulla poena sine lege”.
However, the Geneva Protocol of 1924 on the peaceful resolution of international disputes contains
a statement that aggressive war is an international crime.
A group of American citizens initiated the Geneva Protocol. The group's spokesman was James T.
Shotwell, Professor of History at Columbia University and a member of the American delegation to
the Paris Peace Conference. Titled “Outlawry of Aggressive War”, this Shotwell resolution declared
aggressive war to be a crime, although it designated the state as the only perpetrator of this crime.
The Geneva Protocol declared aggressive war to be a crime. However, it spoke only of the state as
the aggressor and the perpetrator of this new international crime, and respected state sovereignty,
i.e. the essential hurdle of criminalizing war in a truly criminal-legal sense. The contrived sanctions
were only economic, financial, and military, and were directed only against the state. No mention
was made of the particular originator of the war, such as the head of state, members of the
government, or some responsible person as the perpetrator of this new crime. On the contrary, Art.
15, section 2 of the Geneva Protocol says that the aggressor state, which is accountable for the
sanctions, should bear all costs, to the limit of its capacity. But, in other respects (consistent with the
given territorial guarantees of all members of the League in Art. 10 of the Covenant), its territorial
integrity and its political independence should remain inviolable.

FACTS OF THE CASE OF THE NEW CRIME: ACTS OF AGGRESSION AND AGGRESSIVE WAR

It can be assumed that wide circles of public opinion in the United States considered the words
“outlawry of war” and “crime of war” to be sufficient cause for a criminalization, precisely in the
sense that the one responsible for starting a war could be punished as a criminal. Yet, the facts of
the case of this new crime had not been clarified.
In all efforts to outlaw war, it is important to determine clearly whether by aggressive war one was
speaking of war as a whole (whereby the question arose as to whether, given the further
development of wars, such as coalition wars, etc., such a war constituted a unified whole) or
whether one was speaking of aggression as a specific fact, which juridically would have to be
distinguished from war as a whole.
The distinction between an aggressive war and an act of aggression is artificial and formalistic only at
first glance. Every war, even an aggressive war, is normally a bilateral process, a struggle between
two sides. By contrast, aggression is a unilateral act. The question of the justice or injustice of war,
also of aggressive war, is very different from the question of the justice or injustice of a particular act
of aggression. Aggression and defense are not absolute or moral concepts, but situationally
determined processes.
We must bear in mind the linguistic significance of aggression and defense, because prohibition of
aggression differs from prohibition of aggressive war. The crime of firing the first shot differs from
the crime of war.
The question of the legality or illegality of a war and of the deeper circumstances of war guilt leads
naturally to difficult historical, political, sociological, and moral considerations, whose result cannot
be anticipated if one wants to reach a practical solution. But the question of the legality or illegality
of a single act of aggression is easier to answer, at least if it can be isolated juridically from the
deeper questions of guilt, whereby it can be determined precisely, and thereby can be prohibited.
For decades, efforts to find a juridically useful definition of aggression and the aggressor stemmed
not from formalistic inclinations, but from this greater determination of the act of aggression. One
sought a precise determination of aggression and the aggressor. The ideal was to find a simple
criterion that could be applied to a set of circumstances, so that, where possible, it ipso facto would
be obvious who the aggressor is, without the need to examine complicated and often impervious
foreign policy. The superficiality and formality of this method allows for the aggressive act and the
use of force to be stopped as quickly as possible, and even for the outbreak of war to be prevented.
It soon became obvious that “war” did not mean “war”, but “aggression”, because the intention was
to avoid war by stopping aggression before it led to war. Above all, one should not overlook the fact
that prohibition of an aggressive act, with all the many compromises and efforts needed to define
aggression and the aggressor, should result in prevention of an unjust war, but only with full
awareness of the distinction between the justice of war and a justa causa.

FACTS OF THE CASE OF THE NEW CRIME: UNJUST WAR

Any jurist can understand how the precise definition of aggression is separated absolutely and
intentionally from the question of a just war. The dilemma between a juridical and a political type of
thinking is demonstrated here in an especially difficult and dangerous way. On the one hand,
juridical precision is necessary if criminalization of war is to be realized; on the other, the actual
justice or injustice and guilt of war (as perceived directly by the general public) recedes, and the
deeper causes of war, such as general rearmament and lack of security, intentionally are disregarded
in such definitions of the aggressor. The dilemma between a juridically formal handling of the
prohibition of war, as expressed in the Geneva Protocol, and a political, moral, and substantive
solution to the great problem of the causes of war, such as rearmament and security, becomes more
severe.
Such formal determinations of aggression and the aggressor did not hasten, but rather hindered
solution of the particular problem, namely the causes of war and rearmament. The Geneva Protocol
failed because it did not answer the substantive circumstances of the question of just war and did
not even attempt to. It prevented any European conviction that a new international crime had been
or could be established. However, American proponents of outlawing war were not dissuaded by
this failure, and in 1928, in the Kellogg Pact, succeeded in making a formal condemnation, an
abolition of war, a means of national policy.
The Kellogg Pact changed the global aspect of international law. The Western Hemisphere now took
its place and determined further development of the transformation of the meaning of war. At the
same time, however, from the East, the Soviet Union interjected itself into determination of the
transformation.
Thus, the axis of power that had created the concept of war in European international law became
unhinged, as power in the East and in the West came to dominate European states no longer certain
of themselves. For a moment, in the London Statute of August 8, 1 945, East and West finally came
together and agreed. Criminalization now took its course.